Sacrinity & Anor & Wolodzko
[2010] FamCA 1258
•23 February 2011
FAMILY COURT OF AUSTRALIA
| SACRINITY AND ANOR & WOLODZKO AND ANOR | [2010] FamCA 1258 |
| FAMILY LAW – CHILDREN – with whom a child lives – where the mother is unable to provide an adequate level of care for the child – where the father lives overseas and has not established a relationship with the child – where the child had been living with the applicant couple from a young age – where applicant couple are the child’s primary attachment figures – where applicant couple sought to formalise the agreement through parenting orders – where applicant couple are willing to encourage and facilitate a continuing relationship between the child and the birth family – whether arrangement inconsistent with Adoption Act 2000 (NSW) – Department of Human Services declined to intervene in the proceedings – parenting orders made in favour of applicant couple |
| Adoption Act 2000 (NSW) ss 7, 11 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA, 64B, 65AA |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Davis v Davis & Anor (2007) 38 Fam LR 671 Kay v Jasper [2007] FamCA 1646 Rice v Miller (1993) FLC 92-415 |
| 1st APPLICANT: | Mr Sacrinity |
| 2nd APPLICANT: | Mrs Sacrinity |
| 1st RESPONDENT: | Ms Wolodzko |
| 2nd RESPONDENT: | Mr Wolodzko |
| FILE NUMBER: | NCC | 2156 | of | 2010 |
| DATE OF ORDERS: | 15 November 2010 |
| DATE OF REASONS: | 23 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 15 November 2010 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | Not applicable |
| SOLICITOR FOR THE 1ST APPLICANT: | Mr Stephen Rugendyke |
| COUNSEL FOR THE 2ND APPLICANT: | Not applicable |
| SOLICTOR FOR THE 2ND APPLICANT: | Mr Stephen Rugendyke |
| COUNSEL FOR THE 1ST RESPONDENT: | Not applicable |
| SOLICITOR FOR THE 1ST RESPONDENT: | Not applicable |
| COUNSEL FOR THE 2ND RESPONDENT: | Not applicable |
| SOLICITOR FOR THE 2ND RESPONDENT: | Not applicable |
Orders made 15 November 2010
That the child E born … May 2006 (“the child”) will live with the applicants.
The child will spend time with the respondent mother and her siblings as agreed between the applicants and the mother.
The child will have telephone communication with the mother and/or her siblings by agreement between the parties including:
(a)when the mother and/or the child’s siblings ask to speak with her by telephone;
(b)when the child asks to speak with the mother and/or her siblings by telephone.
The applicants will keep the mother informed of milestones in the child’s development, of her school activities and progress at school, and her health needs.
The applicants shall have sole parental responsibility in relation to the child’s medical care, including any treatment or surgery that may be necessary to meet the child’s health needs; provided that the applicants will inform the mother immediately of any medical emergency and will consult with her in relation to any elective surgical procedures.
The Court notes:
A.The applicants will be responsible for all medical and dental expenses for the child.
B.The applicants will be responsible for all costs associated with the child’s care, schooling and welfare and will make no claim against the mother for child support.
C.All parties agree that it is in the child’s best interests that she be permitted to know her grandfather and extended family living in the Pacific Islands and to learn the language and culture of the Pacific Islands.
D.It is agreed that the child will be raised in a Christian environment. The first respondent mother and second respondent father acknowledge that the child presently attends the Sunday School of the Christian Church in N.
It is further ordered:
I give leave to the parties to provide to the Department of Immigration & Multicultural Affairs and any other agency concerned with the child’s welfare the family report released 2 November 2010.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sacrinity & Wolodzko is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2156 of 2010
| MR AND MRS SACRINITY |
Applicants
And
| MR AND MRS WOLODZKO |
Respondents
REASONS FOR JUDGMENT
Introduction
These proceedings concern the future living arrangements for the child E (“the child”) born in May 2006.
The child came into the care of the applicants following a private arrangement reached with the child’s mother. The child has lived with the applicants since about 9 May 2009.
On 15 November 2010, with the agreement of all parties, I made orders in favour of the applicants for which these are my reasons.
The first and second applicants are Mr Sacrinity and Mrs Sacrinity (“the applicants”). The first respondent is the child’s mother, Mrs Wolodzko (“the mother”). The second respondent is the child’s father, Mr Wolodzko (“the father”).
The father is the first cousin of Mr Sacrinity.
The applicants’ proposal
The applicants press for the orders set out in the Minutes of Proposed Consent Orders signed by all parties. These proposed orders provide that the child will live with the applicants and spend time and communicate with her mother and siblings as agreed between the applicants and the mother. The applicants will have sole parental responsibility in relation to the child’s medical care.
Background facts
Mr Sacrinity was born in 1958 and Mrs Sacrinity was born in 1961.
The respondents married in the Pacific Islands in 1999. They have three children, L born in June 1998, A born in May 2001 and the subject child E.
In May 2005 the mother arrived in Australia on an 18 month temporary working visa. The father arrived in Australia two months later in July 2005. The parent’s two eldest children remained in the Pacific Islands with their paternal grandparents. The applicants have supported the mother and her family since her arrival in Australia. Mr Sacrinity visited the family regularly and also provided financial assistance when it was required.
In May 2006 the child was born and in August 2006 the two eldest children came to Australia. In August 2006, when the child was about three months old, the mother returned to work for a few months. In about December 2006 the mother’s 18 month temporary working visa, which was granted in May 2005, expired. After staying home for one year and looking after the child, the mother was granted a working visa and recommenced working.
Because the father worked night shifts, he was able to look after the child during the day while the mother was at work. The mother says she was concerned about the level of care which the father provided the child. The mother says the father rejected and swore at the child following which the child became frightened and wary of males.
The mother also alleges the father physically and verbally abused her and their other children. The nature of the alleged abuse is serious and I will return to these allegations in some detail later.
In December 2008 the parents separated. The father left the mother and went to Townsville. During this time the Department of Immigration & Multicultural Affairs contacted the father and told him he would need to leave Australia in early 2009. At this point the father contacted the mother in an attempt to reconcile, however she refused to see him saying the two older children had no desire for the father to return. The father returned to live in the Pacific Islands in February 2009.
The mother was also having difficulties with her visa. The mother wanted to remain in Australia with the children as she felt more “secure” here than she had in the Pacific Islands, however her working visa had expired and her applications for a relative visa and a protection visa had been rejected.
At the time of separation the mother was working two jobs in order to provide housing, food and education for her children. Because she was working, the mother could not care for the child, who was only about two years and seven months old. Her two older children could not assist as they needed to attend school. Initially the mother arranged for the child to stay with neighbours and, later, an elderly aunt.
The mother’s aunt, aged 74 years old, looked after the child during the week. The mother’s aunt lived in a two bedroom apartment. The occupants of the aunt’s home were her son, daughter-in-law and three children, one of whom was a 16 year old with an intellectual disability. Including the child, there were eight people in the mother’s aunt’s household. The mother and the applicants were concerned about this arrangement, which was lacking in supervision and appeared unsuitable for a young child. The applicants also felt the child had issues with speech development. While staying with the mother’s aunt the child became sick so the mother brought the child home to look after her. This meant the mother was unable to work and she became distressed as she was not able to pay her rent. The applicants continued to support the mother as they had in the past; they visited her and gave her financial assistance. By agreement the applicants took the child into their home.
Since 9 May 2009 the child has lived with the applicants in their home. The child was not distressed about the change in her living and care arrangements and settled into living with the applicants quite quickly; the child started calling the applicants ‘mummy’ and ‘daddy’, she soon became toilet trained, and her speech and language improved. The applicants enrolled the child at T Centre which she attends each Monday, Tuesday, Wednesday and Friday from 8:30am to 4:30pm.
After the child had lived with the applicants for some time, the mother contacted Mr Sacrinity and asked if they would consider caring for the child on a full-time basis. The mother was unable to cope with having to work and look after three children by herself. She felt the child needed a “proper family” and that living with the applicants was in the child’s best interests. The mother told Mr Sacrinity that it had been suggested by either the Department of Community Services or Legal Aid that she place the child in foster care. At the time of making this request, the mother was unaware of the status of her immigration application.
The applicants speak with the mother regularly and keep her informed of the child’s development, progress with pre-school activities and general well-being. The applicants arrange for telephone communication between the child and her mother and siblings at the child’s request. The applicants also arrange for visits between the child and her mother and siblings, which occur approximately once every four to six weeks. There is an understanding between the mother and the applicants that the child will spend time with her mother and siblings on her birthday and during the holidays.
On 29 November 2009 the Family Division of the Magistrates Court in the Pacific Islands declared the dissolution of the marriage of the mother and the father to be final in accordance with Pacific Islands laws.
On 22 December 2009, the applicants and the mother agreed on an Interim Parenting Plan (“the Plan”) for the child. The Plan provides, inter alia:
a)That the child would continue living with the applicants and would spend time with her mother and siblings by arrangement (Orders 1, 3 and 4);
b)That the applicants would communicate openly with the mother and keep her informed of the child’s development and well-being, facilitate telephone communication with the child’s mother and siblings at the child’s request and the mother and siblings would be entitled to call the child at any time (Orders 5 to 7);
c)That arrangements for spending time on the child’s birthday and Easter holidays would remain flexible, allowing for all the parties’ situations on the day (Orders 8 and 1);
d)That the child will spend Christmas 2009 with the applicants (Order 9);
e)That the child is placed under the applicants’ private medical insurance as a dependant and that the applicants may make all decisions regarding the child’s medical and dental treatments and would be responsible for all medical and dental expenses (Orders 10, 12 and 14);
f)That the applicants will inform the mother immediately of any emergency and discuss elective surgical procedures with her (Order 13);
g)That once the Department of Immigration & Multicultural Affairs grants the mother permanent residence, she will arrange a Medicare Card for the child (Order 11);
h)That the applicants will raise the child as their own child, will pay all costs associated with her care and will make no claim against the mother in respect of child support (Orders 15 and 16);
i)That it is the intention of all parties that the child be allowed to get to know her extended family in the Pacific Islands and learn the Island language and culture (Order 17);
j)That the child will be raised in a Christian environment (Order 18);
k)That the mother agrees to hand the child’s Pacific Islands passport to the applicants once she receives permanent residence in Australia and agrees to sign all necessary documentation to enable the applicants to obtain an Australian passport for the child and to hand this passport to the applicants who will bear the costs of obtaining the child’s Australian passport (Orders 22 and 24); and
l)That the mother agrees to allow the child to visit the Pacific Islands with the applicants or one of them (Order 23).
On 19 August 2010 the applicants filed an application seeking orders that the child live with them and spend time and communicate with the mother and siblings as agreed between the applicants and the mother. The applicants proposed they have sole parental responsibility for the child’s medical care.
The applicants’ circumstances
Mrs Sacrinity is employed by a charity in the Hunter region. Mr Sacrinity is employed in the mining industry. Both the applicants are Australian citizens and have lived in Australia for 23 years. They do not have any children.
The applicants reside in the Hunter Valley. Their home, which they own, is well equipped to provide for the needs of a child; it consists of four bedrooms, two lounge rooms, a dining room, a kitchen, two bathrooms and a laundry. The applicants have provided the child with her own bedroom which has a built-in wardrobe and double bed and one of the lounge rooms has been equipped with toys, a television and other items for the child’s use.
The applicants are able to care for the child when she is not attending T Centre. However, if, due to unforseen circumstances, the applicants require a babysitter they have the option of leaving the child in the care of Mrs Sacrinity’s sister, who has two teenage daughters, or their best friends, who have a young son.
Since living with the applicants the child has clearly become very attached to them. She refers to the applicants as “mummy” and “daddy” and the mother as “Nana”, which is the Island word for mother.
The mother’s circumstances
Prior to May 2009, the mother and her three children lived in a two bedroom flat in Sydney. The mother and her two eldest children continue to live there after the child started living with the applicants. The mother works in health services.
The mother has been in difficult circumstances since her arrival in Australia.
The mother’s application to remain in Australia has been and still is an ongoing concern. After the mother’s 18 month temporary working visa, which was granted upon her arrival in Australia in May 2005, expired, she applied for a relative visa and a protection visa, which applications were rejected. However, about one year after the child was born, the mother was granted another work visa. The mother’s application for permanent residency is currently awaiting determination from the Immigration Ministerial Committee. The mother is able to remain in Australia until a determination is made.
Earlier I mentioned allegations that the father had physically and verbally abused the mother and the children. The mother raised these allegations with the Family Consultant. The violence reportedly began while the father and mother still lived in the Pacific Islands. It ceased for some time but recommenced when the father arrived in Australia in mid 2005. The father swore at the child, who was also exposed to the violence the father inflicted upon the mother and other children, and the mother became concerned about the level of care he provided for the child. The child became “frightened and wary” of males and did not wish to approach them. The mother also alleges the father accessed internet pornography and taught their son to masturbate. The family consultant indicates in her report that the Department of Community Services and the Joint Investigative Response Teams have investigated this inappropriate sexual behaviour towards their son. The mother feels she and the children are still traumatised by the abuse inflicted upon them by the father. One child still has an issue with bed wetting and displays some behavioural problems at school.
Mr Sacrinity was unaware of this family violence. However, Mrs Sacrinity was aware as the mother had told her that the father hit her. Mrs Sacrinity advised the mother such behaviour was unacceptable and she should report it to the police.
Due to her uncertain immigration status, the mother felt she could not approach the police about the family violence for fear she would be sent back to the Pacific Islands. In Islander culture, the children are seen to belong to the paternal family, and the mother was afraid she would lose them to the paternal family if she complained.
The mother’s uncertain immigration status has also affected her financial situation. When she had been without a visa the mother was unable to work and therefore unable to provide housing, food or education for her children.
The family consultant wrote the following at paragraphs 34-36 of the Family Report:
It is clear that [the mother] found herself in a very difficult situation when [the child] was a baby and a young child. She was isolated, her marriage had broken down and she was living in an unfamiliar country and culture with only some limited family support. In addition the mother has had ongoing issues with her immigration status and has had to try and negotiate with government departments around this.
According to the mother’s account it appears [she] was a victim of serious violence at the hands of the father during this time. Her capacity to protect herself and her children was limited by cultural barriers and by her fear that any police involvement may cause her to be sent back to the Pacific Islands. The care arrangements for [the child] were fragmented, of uncertain quality and resulted in periods where [the child] had limited time with her mother and siblings. It is also likely that [the child] was exposed to, or experienced family violence, towards her mother and siblings and possible (sic) herself, by the father.
Due to her very difficult circumstances [the mother] was unable to provide the level of care to [the child] that she felt she needed. She genuinely believes [the applicants] can provide the best care for [the child]. She is confident that they love [the child] and that [the child] loves them.
The child’s father
The father has not appeared before the court in relation to these proceedings. However, he has signed and returned the proposed consent orders which Mr Sacrinity sent to him by mail.
The father left the mother in December 2008 and has been living in the Pacific Islands since February 2009. From the evidence available to the court, it appears the father has little or no interest in cultivating a relationship with the subject child or any of his other children. It is Mrs Sacrinity’s evidence the father did not make any enquiries regarding the child when Mr Sacrinity contacted the father in relation to the proposed consent orders. The mother has also informed Mrs Sacrinity that, when speaking to the father on the telephone, the father has not enquired about his children.
This evidence was not challenged and I accept it.
Evidence of the family consultant
The Family Consultant commented on the nature of the relationship between the applicants and the child and the ability of the applicants to meet the child’s long term needs (at [37], [38] and [41]):
…[The applicants] appear to have carefully considered the mother’s request for [the child] to live with them and they have provided a stable, loving and secure home for [the child] since she came to live with them. They have become very attached to [the child] and appear to provide her with a high standard of care.
…
[The child] has a close and loving relationship with [the applicants]. She refers to them as ‘mummy’ and ‘daddy’ and on observation it is clear she sees them as her secure base. [The applicants] are also very attached to [the child] and relate to her in a loving, calm and patient way. [The child] was observed to be comfortable in her mother’s care but still asked for [the applicants] and was happy to be reunited with them.
…
[The applicants] are providing a high standard of care to [the child] and they appear to have carefully considered the implications of the orders they are seeking. They have much to offer [the child] financially, emotionally and psychologically, They (sic) are providing a safe, secure, consistent and loving environment for her.
The Family Consultant was asked to consider the effect on the child of changing her circumstances and any other factor the Family Consultant considers relevant. She made the following comments (at [39] and [42]):
[The child] has experienced a number of different care arrangements over her life. She has spent some time in her mother’s care – the main period appearing to be one year from when she was around 6 months of age. She has spent time in her father’s care, neighbours’, friends’ and relatives’ care until going to live with [the applicants] in about May 2009. At this stage her strongest attachment relationships appear to be with [the applicants] with a secondary attachment to her mother. If she were to be placed in her mother’s care she would have the benefit of a relationship with her mother, brother and sister, however, as the mother works full time she would need to be placed in another care arrangement. She would most likely be distressed by separation from [the applicants] who have provided her with a high level of care for about 18 months.
…
There are unresolved issues around the mother’s immigration status and the impact on [the child] if the mother and the children, including [the child], have to return to [the Pacific Islands]. This is likely to be very distressing for [the child] who has not resided with her mother and siblings for at least 2 years, possibly longer. There would also be concerns about the potential for [the child], and the other children, to be exposed to conflict or family violence between the parents if the mother returns to [the Pacific Islands] where the father currently lives. The family violence issues also raise concerns about any potential spending time arrangements between [the child] and her father and the family violence issues would need to be fully assessed before time between [the child] and her father could be recommended.
From her interviews with the mother, the Family Consultant concludes the mother genuinely believes that placing the child in the care of the applicants would be “the best thing for [the child] and her future”. She writes (at [40]):
…[The mother] appears to understand the consequences of an order being made regarding [the child] as sought by [the applicants] and although missing her daughter strongly believes that this is in [the child’s] long term best interests. She is clear that [the child] loves [the applicants] and that they love [the child] She has no doubts [the child] will be very well cared for by them. She is also confident that she will be able to remain a part of [the child’s] life.
The Family Consultant also said (at [14]-[15]):
The mother said she trusted [the applicants] to take care of [the child] as she knows they love her… the other children, aged 13 and 9 years, initially asked where [the child] was. The mother explained to them that she had to work and they went to school and there was no-one to look after [the child]. The does not feel the other children are jealous of [the child] and they also view [the applicants] as family.
…She feels [the child] is safe and happy even though she misses her… The mother commented that [the applicants] make decisions about [the child] but they discuss issues with her and she feels she knows what is going on.
The applicants intend to raise the child in a Christian environment and send her to Christian schools. The Family Consultant questioned the mother about the issue of religious beliefs and was informed this was not an issue as “they were all Christians”.
Regarding the applicants’ views, the Family Consultant writes (at [24], [28] and [30]):
… the mother approached [the applicants] about caring for [the child] on a full time basis. [The applicants] said that they gave the request a great deal of thought as they were settled in their lifestyle and both had careers.
…[The applicants] discussed how caring for [the child] had changed their life and they appeared to be very aware of the commitment it involved, particularly given [the child’s] young age. They both spoke very lovingly of [the child] and said that they saw her as a ‘gift’ and commented that she would keep them young…
[The applicants] said that [the mother] wanted them to make decisions for [the child] but they stated that they discuss issues with her and have regular communication with her…
The family consultant’s evidence was not challenged and I am satisfied it warrants significant weight.
Adoption Act 2000 (NSW)
The Adoption Act 2000 (NSW) (“the Adoption Act”) repealed and replaced the Adoption of Children Act 1965 (NSW) and the Adoption Information Act 1990 (NSW). The Act gave effect in general to the principal recommendations of the New South Wales Law Reform Commission in its Report No 81 entitled Review of the Adoption of Children Act 1965 (NSW). The main objects of this Act, as stated in s 7 of the Adoption Act, are:
(a)to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b)to make it clear that adoption is to be regarded as a service for the child concerned,
(c)to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,
(d)to recognise the changing nature of practices of adoption,
(e)to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,
(f)to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,
(g)to encourage openness in adoption,
(h)to allow access to certain information relating to adoptions,
(i)to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.
Chapter 3 of the Adoption Act makes it clear that individuals must not make their own arrangements for adoption, whether personally or through private institutions. Indeed, section 11 provides that an adoption service in relation to the adoption in New South Wales of a child may only be provided by the Director-General or an organisation accredited under Part 2 as an adoption service provider.
When this matter came before me on 27 September 2010 I invited the parties to inform the Department of Human Services of their intention that the child live with the applicants. The Director-General of the Department of Human Services declined to intervene in these proceedings. I conclude from this that the Director-General is not troubled by the proposed arrangements for the child and that the arrangements are not inconsistent with the Adoption Act.
General law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
Child’s best interests
No application was made for equal shared parental responsibility. It is therefore unnecessary to consider equal or substantial and significant time with each parent under section 65DAA. Only the child’s best interests need be considered.
Section 60B(2)(a) of the Family Law Reform Act 1995 provided: “Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.” Sub-paragraph 2(a) emphasises the ‘right’ of a child to ‘know’ and to be ‘cared’ for by both parents, regardless of whether they are together or separated. The question arose of whether the objects section, and therefore a child’s right to know and be cared for by a parent, should be given predominance over the principle that the child’s interests is the paramount consideration. This issue was resolved in B v B: Family Law Reform Act 1995 (1997) FLC 92-755 where the Full Court determined that ss 60B(2) and 68F were subject to the child's best interests. According to B v B: Family Law Reform Act 1995 in proceedings under Part VII the best interests of the child is the paramount or pre-eminent consideration and “all other considerations are subservient to that”. It was confirmed in B v B: Family Law Reform Act 1995, at 84,219, that: “A court which is determining issues under Part VII of the type which we have referred starts from that essential premise and it remains the final determinant”. Thus while children have a right to be cared for by both parents, and the Court must consider the various rights, principles and factors identified in ss 60B and 60CC, these remain subject to the child’s best interests.
The logic of this approach adopted by the Full Court in B v B: Family Law Reform Act 1995 (supra) to the significance of the best interests principle as the ultimate determinate applies with equal force to parenting cases decided under the current Part VII. Thus in cases in which parents are parties those objects, principles and factors which refer to parents must be considered in so far as they apply to the child’s parents. Those which apply to all parties apply to parents and non-parents alike. Those which refer to other specific categories of people, for example grandparents, apply specifically. However, by virtue of s 60CC(3)(m) the Court may decide that s 60CC(3) factors which refer solely to parents, for example s 60CC(3)(c) ought to be considered having regard to other important people in the child’s life. Another example might be that reliant on s 60CC(3)(m) the Court considers the benefit to the child of having a meaningful relationship with a grandparent who has been significantly involved in the child’s life. This makes the various factors inclusive not exclusive. By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility, where the evidence satisfies the Court that it would not be in the child’s best interests, refutes any notion that the Act elevates parents above others in parenting cases decided under the present Part VII. Thus it is clear that the 1 July 2006 Part VII amendments have not statutorily introduced a presumption in favour of parents. This finding accords with the conclusion reached by Young J in Davis v Davis & Anor (2007) 38 Fam LR 671 and by O’Reilly J in Kay v Jasper [2007] FamCA 1646. Consequently, I will consider the relevant s 60CC(3) criteria relating to the respondent parents and the applicants simultaneously.
Section 60CC(2) – Primary considerations
There is no question the child will benefit from a meaningful relationship with the applicants. They are the child’s primary attachment figures; this is shown by the child referring to them as ‘mummy’ and ‘daddy’. The child will also benefit from a meaningful relationship with the mother. The child was observed by the Family Consultant to have an affectionate relationship with her mother. During the interview with the Family Consultant, the child “approached her mother, a little shyly, and gave her a hug”. Although the child will be living with the applicants, maintaining a meaningful relationship with the mother will also allow the child to maintain relationships with her siblings.
The father has shown no interest in forming a relationship with the child. Since returning to the Pacific Islands the father has made no attempt to contact the child and has made no enquiries about the child when communicating with the mother and the applicants. Furthermore he has not filed any response or made an appearance in these proceedings. At present the child has no relationship with the father.
There is unchallenged evidence that during the parents’ relationship, the child was subjected to verbal abuse by the father and was exposed to abusive behaviour directed at the mother and the other children. In relation to the father, there exists a need to protect the child from physical and psychological harm arising from being subject to or exposed to abuse or family violence. However, the father presently resides in the Pacific Islands and has expressed no interest in forming any relationship with the child. Without further investigation, no order is made regarding the child’s time with the father.
There is no evidence of any family violence between the mother and the applicants or between the applicants. The consent orders provide for the child to live with the applicants and spend time with the mother and her siblings. They do not expose the child to an unacceptable risk of violence, abuse or neglect.
Section 60CC(3) – Additional considerations
The child was not invited to express her view as to her future living arrangements. At the time of making these orders, the child was 4 years and 7.5 months old, too young and emotionally immature to appreciate the long term consequences of choosing to live with either the applicants or her mother.
As already discussed, the child has an affectionate relationship with her mother and calls her ‘nana’, the Island word for mother. The child enjoys a loving relationship with both the applicants, referring to them as ‘mummy’ and ‘daddy’. The Family Consultant observed the child was “comfortable in her mother’s care but still asked for [the applicants] and was happy to be reunited with them. The child’s surname is already ‘Sacrinity’.
The child has virtually no relationship with her father and has not spent time with him since he left for Townsville in December 2008. The father was a presence in the child’s life when the child was at a very young age. The father swore at the child and rejected her. The father did not attend Court or provide any evidence which denied these allegations. Thus the nature of the child’s past relationship with her father was, in all probability, not a happy one.
The applicants are willing and able to encourage and facilitate a close and continuing relationship between the child and the mother as well as her siblings. They have expressed their intention to do so approximately once every four to six weeks in accordance with the consent orders. There is no reason to question the applicants’ willingness to encourage and facilitate a close and continuing relationship between the child and her birth family. The mother and the applicants relate to each other “in a pleasant, respectful and comfortable manner”. History shows the applicants have facilitated regular time between the child and her birth family, and it is highly likely they will comply with the orders and continue to do so.
Furthermore, despite the mother’s wish for the applicants to make decisions regarding the child, the applicants have stated they discuss and regularly communicate with the mother about such decisions. The cooperative attitude between the applicants and the mother indicate a willingness and ability on the part of these parties to encourage and facilitate a close and continuing relationship between the child and her birth family.
The applicants also intend to take the child to the Pacific Islands regularly, if and when she is able to obtain an Australian passport. They have demonstrated a willingness to encourage the child to become acquainted and spend time with her grandfather and other extended family members living in the Pacific Islands. She will also be able to learn more about the Island language and culture.
In relation to the likely effect on the child of any changes in her circumstances, I accept the Family Consultant’s evidence that although the child would enjoy a relationship with her siblings if she were to live with her mother, she would “most likely be distressed by separation from [the applicants] who have provided her with a high level of care for about 18 months”. Thus the orders preserve the child’s present living arrangements.
The applicants reside in the Hunter area of NSW. The mother resides in the Sydney metropolitan area. Although the applicants and the mother live a fair distance from one another, the orders provide that the child will spend time with the mother and her siblings as agreed between the applicants and the mother. This provides flexibility as to the frequency of visits between mother and child. In the past, the applicants have facilitated regular time between the child and her mother and siblings about once every four to six weeks. If this is an indication as to how frequently the child and the mother will be spending time in the future, the practical difficulty and expense of the child spending time and communicating with the mother is not so unmanageable that it will substantially affect the child’s right to maintain a relationship with the mother.
From the evidence provided by the Family Consultant outlined above, I am satisfied the applicants are well equipped physically, emotionally, psychologically and financially to provide for the child’s short-term and long-term emotional and intellectual needs to a high standard.
The relevant matters concerning the applicants’ and the parents’ maturity, sex, lifestyle and background have already been discussed. There is nothing to add.
The child is not an Aboriginal or Torres Strait Islander child.
The applicants have demonstrated a proper attitude to the child and the responsibilities of parenthood. After the mother approached them about undertaking full time care of the child, the applicants gave the request a “great deal of thought as they were settled in their lifestyle and both had careers”. The Family Consultant’s evidence is that both the applicants “discussed how caring for [the child] had changed their life and they appeared to be very aware of the commitment it involved, particularly given [the child’s] young age.” I accept the Family Consultant’s evidence. They have equipped their home so that it is well suited to the needs of a young child. The applicants have also demonstrated a proper attitude to the advancement of the child’s educational and social development by enrolling her in pre-school four days each week to prepare her for school.
When the child was in the mother’s care, the mother appears to have demonstrated a proper attitude toward the child and the responsibilities of parenthood, given her difficult circumstances. She worked two jobs in order to provide housing, food and education for her children and organised for alternate care of the subject child when she felt she could not cope with her responsibilities. Having recognised she cannot provide the level of care the child requires, she has requested the applicants take full time care of the child.
The father’s attitude to the child and the responsibilities of parenthood has been abusive and neglectful.
Family violence involving the child or a member of the child’s family has been discussed above and there is no family violence order which applies to the child or a member of the child’s family.
Section 60CC(4)
The extent to which the parties have fulfilled their responsibilities has been discussed.
Conclusion
I am satisfied that the applicants are physically, emotionally and intellectually equipped to meet the child’s short term and long term needs to a high standard.
The applicants would like the child to have a relationship with her birth family in Australia and her extended family in the Pacific Islands. There is no reason to doubt that they will do their best to ensure this occurs. While this outcome is not solely within their capacity, to the extent it is possible they will cooperate. The applicants are willing to facilitate time between the child and her mother and siblings and keep the mother informed of the milestones in the child’s development.
Since the child will be living with the applicants on a full-time basis, it is appropriate they have sole parental responsibility in respect of her medical care and consult with the mother regarding any elective surgical procedures.
The applicants and the mother have carefully considered and understand the long-term consequences of this arrangement. They all understand the difficulties which will arise if the child is not permitted to reside in Australia.
So that it is clear, this judgment is not intended to predetermine any decision of the Minister for Immigration and Multicultural Affairs in relation to the mother’s or child’s immigration status.
For these reasons it follows that it is in the child’s best interests to live with the applicants and I make the orders identified at the start of this judgment.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 February 2011.
Associate:
Date: 23 February 2011