Sheedy and Anor and Sheedy and Anor

[2015] FamCA 402

FAMILY COURT OF AUSTRALIA

SHEEDY AND ANOR & SHEEDY AND ANOR [2015] FamCA 402

FAMILY LAW – CHILDREN – Application for parenting order by child’s maternal aunt and uncle – Application supported by child’s mother and maternal grandfather who had parental responsibility for child under previous order – Best interests of child for orders sought to be made – Need for child to receive urgent medical treatment

Family Law Act 1975 (Cth)

APPLICANTS: Ms Sheedy and Mr Guy

FIRST RESPONDENT: Mr Sheedy

SECOND RESPONDENT: Ms Finn (also known as Sheedy)

FILE NUMBER: BRC 4574 of 2015

DATE DELIVERED: 27 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: No appearance required

SOLICITOR FOR THE FIRST

RESPONDENT:

No appearance required

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance required

Orders

it is ordered by consent:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. That the necessary time requirements be abridged to allow for the urgent hearing and determination of this Application.

2. The Applicants have leave to publish these Orders and the Reasons for Judgment of Kent J delivered today to:

   (a)       Any medical health professional or health provider for the child; B born … 1999 (formerly known as Dodd); and

   (b)       Any provider of health insurance.

3. The matter be removed from the pending cases list.

4. Pursuant to s 62B and s 65DA(2), 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 DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

1. That all previous orders be discharged.

2. The Applicants jointly have equal shared parental responsibility for all decisions concerning the long term care, welfare and development of the child, B born in 1999 (formerly known as Dodd) (“the child”), including, but not limited to, his education, health and medical treatment and religious instruction and observance.

3. The Applicants have sole responsibility for all decisions concerning the day to day care, welfare and development of the child.

4. The child live with the Applicants.

5. The child spend time with the First Respondent as agreed.

6. The child spend time with the Second Respondent as agreed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheedy & Anor & Sheedy & Anor 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: BRC4574/2015

Ms Sheedy and Mr Guy

Applicants

And

Mr Sheedy

First Respondent

And

Ms Finn (also known as Sheedy)

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an urgent application filed on 25 May 2015, Ms Sheedy and her husband Mr Guy apply for final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) with respect to the child, B born in 1999 (formerly known by the surname Dodd) (“the child”).

2. For reasons which follow I am satisfied as to the urgency of the application and that all necessary time requirements ought be abridged to allow the urgent hearing and determination of this application.

3. Specifically, amongst the orders sought by the applicants (who are the child’s maternal aunt and maternal uncle) is an order that the applicants jointly have equal shared parental responsibility for the child. 

4. Section 61B of the Act contains the definition or meaning of “parental responsibility”. It provides:

   …parental responsibility, in relation to a child, means all the duties,

   powers, responsibilities and authority which, by law, parents have in

   relation to children.

5. Thus the making of an order for parental responsibility displaces the legal position, under s 61C of the Act, which provides that each of the parents of a child has parental responsibility. Thus an order in these terms reposes in the applicants all of the duties, powers, responsibilities and authority which, by law, parents have.

6. The child’s biological mother, Ms Finn (also known as Sheedy) has provided an affidavit in support of this application.  In her affidavit Ms Finn expresses her consent to, and complete support of, the orders sought by the applicants.  The child’s biological father, Mr Dodd is deceased.  He died in September 2007. 

7. Mr Sheedy, the maternal grandfather of the child, has also provided an affidavit in support of the application in which he expresses his consent to, and support of, orders being made as sought by the applicants.

8. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA) and the Court determines a child’s best interests by reference to the considerations expressed in s 60CC.

9. In this case, by reference to those considerations, there cannot be any doubt that the making of the orders sought by the applicants are in the child’s best interests.  Informing that conclusion are the following facts and circumstances:

   a)The child has lived with the applicants (and their daughter born in 2004) for the past (almost) 10 years, since September 2005 when he was just six (6) years of age.  For all relevant intents and purposes the applicants have long regarded and treated the child as if he were their son; and conversely the child has long regarded the applicants, and treated them, as his parents.  In this sense, the orders sought do no more than give formal legal effect to a position that has obtained for many years now;

   b)At the time of his birth, the child’s biological parents were heroin addicts.  The child was discharged from hospital (after some months of treatment consequent upon his mother’s heroin addiction) into the care of his maternal grandparents.  Neither of the child’s biological parents have ever had any meaningful involvement in his life and, as noted, the child’s biological father died in 2007.  Moreover, the child’s biological parents have never exercised parental responsibility in relation to the child;

   c)On 3 March 2000 (when the child was about 14 months old) parenting orders were made by this Court with the consent of the child’s biological parents upon the joint application of the child’s maternal grandparents.  Those orders allocated parental responsibility for the child to the maternal grandparents and provided for the child to live with them.  In 2001 the applicants commenced living in the same street as the maternal grandparents and then commenced to have significant involvement in the child’s life;

   d)Sadly, in 2002 the maternal grandmother passed away.  the child began spending significant amounts of block periods in the care of the applicants from then until September 2005 when the maternal grandfather, in the exercise of his parental responsibility, caused the child to commence living fulltime with the applicants.  the child has been supported by the applicants financially, emotionally, intellectually and otherwise since then.  Put another way, since he was only about six years of age the child has relied substantially wholly upon the applicants for all facets of his care and support.

10. Very recently, commencing on 24 April 2015, events have occurred leading to a diagnosis of brain lesions on the child’s brain, a condition requiring urgent and intensive treatment.  Understandably, the applicants wish to provide the best possible medical treatment for the child and that can be achieved if the child were to be included on the applicants’ private health insurance policy or coverage.  That is, in turn, achievable by the making of the orders sought by the applicants. 

11. Undoubtedly, then, the making of such orders are in the child’s best interests.  Important medical decisions will need to be made in the child’s medical interests, and made soon.  The applicants are best placed to make such decisions.  It is self-evidently in the child’s best interests that his medical treatment is optimal.  The applicants are best placed to secure optimal medical treatment for the child in his best interests if they have, by order, parental responsibility for the child.  There is conclusive evidence filed in support of the application, which I accept, as to the urgent need to secure for the child optimal and urgent medical treatment in his best interests.

12. It is in the child’s best interests that the previous orders made in 2000 be discharged as those orders do not, and have not for a long time now, reflected the actual parenting arrangements for the child that have existed since 2005 with him living with the applicants.

13. Likewise it is in the child’s best interests that an order for him to live with the applicants is made.

14. I am satisfied that the applicants will continue the practice, as they have for the past decade, of facilitating time for the child to spend with other relatives, including the respondents.

15. Finally, it is self-evident on the evidence in support of the application that the proposed orders are in accordance with the child’s own views and at his age and level of development significant weight must be given to the child’s own views.

16. For these reasons I make orders in terms of the orders sought by the applicants in their application which are the subject of consent and support by each of the maternal grandfather and the child’s biological mother.

17. I will further order that the applicants be at liberty to publish the orders and these reasons for judgment if that be necessary to any medical health professional or health provider for the child; or to any relevant provider of health insurance.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 May 2015.

Associate:

Date:  27 May 2015