Telito & Glass
[2024] FedCFamC2F 501
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Telito & Glass [2024] FedCFamC2F 501
File number(s): SYC 955 of 2024 Judgment of: JUDGE MURDOCH Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PARENTING –– Application for Review – Where the child is not yet three years of age - Where the applicants in the substantive proceedings are the aunt and uncle of the respondent mother – Where the aunt and uncle have been the primary carer of the child since his birth and assert they adopted the child pursuant to a Country B custom – Where the respondent parents assert they were coerced into participating in such custom – Where the mother unilaterally retained the child in January 2024 – Where orders were made by a Senior Judicial Registrar for the child to be returned to the aunt and uncle – Where the mother seeks to review such orders –Where the parents unilaterally changed the child’s name – The Application for Review of Orders that the child remain with the aunt and uncle is dismissed and Orders made restraining the parties from calling the child by his new legal name. Legislation: Family Law Act1975(Cth) ss VII, 60B, 60B(2), 60B(2)(e), 60CA, 60CC, 64C, 65C.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05.
Cases cited: Donnell & Dovey [2010] FamCAFC 15
Goode & Goode [2006] FamCA 1346
Re Evelyn [1998] FamCA 55
Salah & Salah [2016] FamCAFC 100
Souter & Meagher & Anor [2007] FamCA 18
SS & AH [2010] FamCAFC 13.
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 18 April 2024 Place: Sydney Counsel for the Applicant: Mr Moutasallem Solicitor for the Applicant: Pinnacle Lawyers Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Caldwell Martin & Cox ORDERS
SYC 955 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TELITO
First Applicant
MS TELITO
Second Applicant
AND: MS GLASS
First Respondent
MR GLASS
Second Respondent
INDEPENDENT CHILDRENS LAWYER
Intervener
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The parties are restrained by injunction from: -
(a)addressing or referring to the subject child of these proceedings X Glass also known as X Telito born in 2021 (“the child”) by any name other than X Telito; and
(b)allowing any other person to address or refer to the child other than as X Telito.
2.Any application for costs is to be made by way of an Application in a Proceeding together with any Affidavit and Financial Statement in support and is to be filed within 14 days of the date of these orders.
3.Any Response to such Application and an Affidavit in support including a Financial Statement is to be filed within 14 days thereafter.
4.Unless such Application or Response seeks an order that such determination occur via an oral hearing, any determination as to costs will proceed on the material filed and in Chambers.
5.Save as to the question of costs, the Application for Review filed on 4 April 2024 is otherwise dismissed.
THE COURT NOTES THAT:
A.The Independent Children’s Lawyer was appointed in the evening prior to the Application for Review and as such they were not in a position to participate in the hearing of the Application for Review.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These proceedings concern a child who is almost three years of age. He was, until January of this year, predominately in the care of the applicants and was known as X Telito. The spelling of X’s name appears to differ in each of the parties’ affidavits. I have thus relied upon the spelling of X’s name as depicted on his original birth certificate for the purpose of this judgment.
In January 2024 the child was unilaterally removed from the applicants’ care by the respondents who changed his name on the birth certificate to X Glass.
Pursuant to orders made on 14 March 2024 the child was returned to the care of the applicants and is presently spending time with the respondents. The child is currently known as “X” in the applicants’ household and as “X” in the respondents’ household. He will be referred to in this judgment as “the child”.
The respondents in the substantive proceedings are the child’s biological parents. The applicants refer to themselves as the aunt and uncle of the child’s mother. In those circumstances and to avoid the parties being referred to in these parenting proceedings as “applicants” and “respondents” it was agreed that the parties would be referred to as follows: -
·the first applicant as (“the aunt”);
·the second applicant as (“the uncle”);
and collectively (“the aunt and uncle”).
·The first respondent as (“the mother”);
·the second respondent as (“the father”);
and collectively (“the parents”).
The reference to the applicants as the “aunt” and “uncle” during the course of the proceedings and in this judgment is merely for ease of reference and does not signify that the court does not appreciate that each of the parties in these proceedings view themselves as the child’s parents.
The child came into the care of the aunt and uncle in 2021, four days after his birth and subsequent to his release from hospital. The circumstances surrounding this arrangement is the subject of dispute. The aunt and uncle contend that they adopted the child pursuant to a Country B custom known as ‘…’ which translates to “adopted.”[1] The parents deny that any adoption occurred or that they ever intended for the child to be adopted in this manner. They assert that even if the child came into the care of the aunt and uncle in this manner, “…’ entitles the biological parents to request the child be returned to their care at any time.
[1] Applicant’s case outline filed 11 March 2024, paragraph 3.
It is undisputed however that in 2021 the aunt and uncle were the child’s primary carers until he was unilaterally removed from them by the parents on 6 January 2024.
Listed for determination today is an application filed by the mother seeking to review interim orders made by a Senior Judicial Registrar on 14 March 2024 requiring the parents to return the child to the care of the aunt and uncle. The child has been returned to the care of the aunt and uncle pursuant to those orders.
BACKGROUND
The aunt and uncle have one biological child together; C who is 15 years of age.
The mother has one child from a prior relationship, D who is 11 years of age.
The mother and father have two children together who are not the subject of these proceedings; E who is 7 years of age and F who is 5 years of age.
Both the aunt and the mother depose that they are related to the mother and that they have known each other for the mother’s entire life. It does not appear to be disputed that the aunt met the father in 2015. The aunt deposes that she and the mother became close during that same year.
The circumstances and background to the child coming into the care of the aunt and uncle are the subject of significant dispute. Broadly, the aunt deposes that she and her elder sister commenced assisting the mother in caring for her two eldest children in 2016 where the mother would drop them off at 5:00am and collect them at 3:00pm each day. When the mother’s third child F was born in 2017 this arrangement continued, and it came to a stage where the mother’s children were spending more time in the aunt’s home than that of the mother and father. It is deposed that this arrangement is normal in Country B culture.
The mother disputes that the aunt was a significant carer for her elder children and deposes that she can recall only two occasions when she dropped her children to the home of the aunt and uncle in the morning on her way to work. Her children have had sleepovers at the home of the aunt and uncle, and she has also hosted the aunt and uncle’s daughter from time to time at their home.
The aunt deposes that in 2019 she was advised she would be unable to have any more biological children. After this time she had many conversations with the mother as to how upset she was about this circumstance. In mid-2020 the mother invited her for dinner and discussed the prospect of her and the father falling pregnant with a child and allowing aunt and uncle to have the baby.[2] The aunt spoke to the uncle after this dinner and they both agreed.
[2] Applicant’s affidavit, paragraph 21.
The mother deposes that throughout 2018 and 2019 the aunt attended upon her home and began speaking about the possibility of the mother having a fourth child who she would give to the aunt and uncle. The aunt became more forceful in her requests however the father was uncomfortable with this prospect as he is not of Country B background. The aunt started praying for the father to “soften [his] heart” and took part in a fast with her church during this period to convince the mother and father to have another child.[3] The mother deposes that she felt so much pressure that in early 2020 she relented, and the respondents agreed for another pregnancy to occur.
[3] Ibid, paragraph 18.
It is undisputed that the child was born in 2021 at G Hospital via caesarean section. The aunt was with the mother in theatre during the birth of the child. He was bottle-fed from birth.[4] The aunt and uncle named the child after the uncle’s father. The mother deposes that the naming of the child occurred without her knowledge or consent, and she would not have agreed to the name “X” as she already has a son by that name. She asserts that she was not given a choice about breastfeeding the child.
[4] Applicant’s affidavit, paragraph 32-33.
It does not appear to be disputed that subsequent to this time the mother sent a text message to the aunt’s sister that included the following:
…it took me years to think about it when [Ms Glass][sic] asked for [F] I knew [Mr Glass] won’t agree and than [sic] when me and [Mr Glass] started to talk about having no more kids I just think of [Ms Glass][sic] how she wanted to have kids but she can’t and here I am talking about having no kids not because that we can’t but because we’re lazy…
In 2021 upon his release from hospital the child went home with the aunt and uncle who cared for him from this date.
Upon his birth the child’s birth certificate recorded his name as “X Telito”. The mother and uncle were listed as his biological parents.
From 2021 to January 2024 the child lived with the aunt and uncle who depose that they raised him as their son. The aunt and uncle depose that child calls the aunt “mum,” the uncle “dad” and their daughter C “….”[5] The child has not been told that the aunt and uncle are not his biological parents; they were planning on revealing this to him when he turned eight years of age.[6]
[5] Applicant’s affidavit, paragraph 37 to 39.
[6] Applicant’s affidavit, paragraph 40.
The aunt deposes that from 2021 to late 2021 the mother would see the child when she came to their home to drop off or collect F. From late 2021 F began spending less time in their home and was spending no time in their home by late 2022. The aunt deposes that the mother and father went to the home of the aunt and uncle and spent time with the child on “a couple of occasions” subsequent to late 2022 for approximately one hour each time.[7]
[7] Applicant’s affidavit, paragraph 47.
The mother and father’s evidence as to the time they spent with the child from 2021 to the latter part of 2023 is vague. The mother deposes that “when” she and the father visited after the child’s birth they were not allowed to hold him[8] and that subsequent to some text messages she sent to the aunt on “later that year” (the year is not deposed) “whenever” she would try and visit the child she would not be allowed to see him at all, and “he would be kept in a bedroom away from me.”[9]
[8] Mother’s Affidavit, paragraph 38.
[9] Ibid, paragraph 50.
It thus does not appear to be contested that from 2021 to the latter part of 2023 the child was living with the aunt and uncle and spending little time, if any, with the mother and father. The mother and father did attend a birthday party arranged by the aunt and uncle for the child in 2022.
It is undisputed that in September 2023 the mother sent a text message to the aunt asking to meet up for a coffee. At this meeting the mother told the aunt that she wanted the child’s birth certificate to be changed so that it recorded the father as the child’s father. It appears to not be the subject of dispute that the mother told the aunt on this occasion that she regretted giving the child to the aunt and uncle. The mother deposes that she told the aunt that “I never wanted to give up my son like that where I can’t have access to him anymore.”[10] It was not agreed that the child’s birth certificate would be amended.
[10] Mother’s Affidavit, paragraph 65.
The parties agree there was a meeting between all the parties in October 2023. The child’s birth certificate and the possibility of DNA testing being conducted was discussed. The parties disagree as to what was agreed on this date. The aunt deposes that they agreed to have the child’s birth certificate changed to remove the uncle as the father; a DNA test was not necessary as they all knew who the child’s father was. The mother deposes that the aunt and uncle told them changing the birth certificate was very expensive. She therefore contacted the Registry of Births, Deaths and Marriages and was told that a paternity test would be enough to correct the name of the father on the certificate and so she arranged for a paternity test to be undertaken. The mother’s affidavit is unclear as to whether the child’s DNA test was booked for late 2023.
The aunt deposes that in late 2023 the parents attended at their home and requested they be able to take the child for a DNA test and a passport photo. The aunt allowed them to take the child to obtain a passport photo. She deposes that she did not agree that the child undertake a DNA test. The child spent the weekend at the home of the parents, it appears under the proviso that C be present. In late 2023 the child and C returned home.[11]
[11] Applicant’s affidavit, paragraph 52-55.
At some stage the mother and father applied for a new birth certificate for the child. They corrected the recording of the child’s biological father and changed the child’s name from X Telito to X Glass. There is no evidence that the parents advised the aunt and uncle of this at this time. The mother deposes that the child’s name was completely changed as she was advised by staff at the Registry of Births, Deaths and Marriages that X’s name should be changed so that the original certificate could never be used. The mother deposes that they generally refer to the child as “…”.[12]
[12] Mother’s affidavit, paragraph 102-103.
It is agreed that the child then began spending more time with the parents. The aunt deposes that the child spent time with the parents:
·in the week commencing November 2023 Tuesday – Thursday;
·the following Tuesday to Wednesday afternoon; and
·in the following week from Sunday afternoon to Thursday.
The mother deposes that “during the latter part of 2023, X was living a 4/4 arrangement between the two homes.” There is no further specificity as to when this alleged arrangement commenced.
It is uncontested that the time the child had been spending with the parents overnight at their home again ceased in December 2023 as the aunt and uncle advised the parents that if they wanted to see the child it would have to occur at their home.
The aunt deposes that this decision was made as they started to notice changes in the child’s behaviour. The mother deposes that during the time the child had spent overnight in their home it became clear that he did not want to return to the aunt and uncle’s home and would run away from the aunt and uncle when they came to collect him. In December 2023 she deposes that the child began screaming: “Mummy. I don’t want it. I want to stay.”[13]
[13] Ibid, paragraph 79.
The child did not spend any time with the parents at their home until January 2024. In January 2024 the mother, father, their three children and the mother’s parents attended at the home of the aunt and uncle in two separate cars. It is uncontested that on this day upon being handed the child the mother took him to her car without the aunt and uncle’s permission and drove off with him. The uncle called the mother to ask what was happening and she told him that she would not be returning the child. The aunt and uncle called the Police who later conducted a welfare check.
The child did not spend any time with the aunt and uncle from this time.
On 12 January 2024 a solicitor on behalf of the aunt and uncle sent an email to the mother advising that they intended to commence legal proceedings to have the child returned to their care. On 16 January 2024 the mother and father’s solicitor responded to such correspondence advising that the mother did not intend on returning the child to the care of the aunt and uncle and proposing “...an informal arrangement whereby X could spend time with your clients on a monthly basis and she asks that they provide her with their proposal in that regard.”[14]
[14] Exhibit MF1.
On 14 February 2024 the aunt and uncle filed an Initiating Application seeking both interim and final orders that the child be returned to their care and spend time with the mother and father each Saturday.
On 23 February 2024 the matter was listed for an interim hearing on 13 March 2024.
On 8 March 2024 the mother and father filed a Response seeking simply that both the interim and final orders sought by the aunt and uncle be dismissed and that the aunt and uncle pay their costs. No orders were sought as to any time the child would spend with the aunt and uncle.
On 13 March 2024 a defended interim hearing took place. Judgment was reserved to the following day.
Orders were made on 14 March 2024 broadly that:
·The mother and father return the child to the aunt and uncle by 4.00pm on 15 March 2024 failing which a recovery order would issue.
·The child live with the mother and father as agreed in writing between the parties but failing agreement in a two-week cycle being from 10.00am Saturday to 5.00pm Sunday in week one and from 10.00am to 5.00pm Saturday in week two, together with time on the child’s birthday.
·The child live with the aunt and uncle at all other times.
·The child’s transition between the households is to occur at Suburb McDonalds. Only the parties, the child and the child’s non-adult siblings are to be present during such transitions.
·The parties shall have equal shared parental responsibility for the child in respect to major long-term issues.
·Each of the parties have parental responsibility in respect to issues that are not major long-term issues when the child lives with them.
·Each of the parties are restrained from denigrating any other party in the presence or hearing of the child or permitting any other person to do so.
·An Independent Children’s Lawyer be appointed for the child.
·The NSW Department of Communities and Justice and New South Wales Police Force produce any material in their possession relating to the parties and/or the child by 27 March 2024.
·Each party is permitted to provide a sealed copy of these orders to any member of the NSW Police Force and person providing medical or health services to the child.
Whilst Orders were made by the Senior Judicial Registrar on 14 March 2024 the parties agree that the reasons for such orders were reserved on this date. Such reasons have still not been delivered despite the making of orders some five weeks ago.
THE COMPETING PROPOSALS
The mother and father seek to vary the orders made by the Senior Judicial Registrar such that:
·The child will be returned to their care by no later than 4:00 pm the day after the making of the orders failing which a recovery order will issue.
·The child will live with the mother and father.
·The child will spend time with the aunt and uncle each alternate weekend from 10am Saturday to 5pm Sunday.
·The order that each of the parties have parental responsibility for day-to-day decisions concerning the child is discharged.
·That the child be referred to by all parties as “X.”
The aunt and uncle seek a dismissal of the Application for Review and an injunctive order made restraining any of the parties referring to the child as other than “X.”
The allocation of parental responsibility on an equal shared basis to all of the parties is not the subject of review.
THE EVIDENCE
The mother and father relied upon the: -
·Application for Review filed on 4 April 2024;
·Response filed on 8 March 2024;
·Case Outline filed on 11 March 2024;
·Mother’s affidavit filed 11 March 2024; and
·Father’s affidavit filed 11 March 2024.
The aunt and uncle relied upon the: -
·Application for Final Orders filed on 14 February 2024;
·Case Outline filed on 11 March 2024;
·Aunt’s affidavit filed 14 February 2024; and
·Uncle’s affidavit filed 14 February 2024.
THE LEGISLATIVE PATHWAY
Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision.
The hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error.
Section 65C of the Family Law Act1975 (“the Act”) provides that any person concerned with the care, welfare or development of a child can apply for a parenting order. Section 64C of the Act provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
In deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration.[15] The child’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act.
[15] Family Law Act 1975 (Cth) s60CA.
Section 60B(2) of the Act provides that 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.) This principle applies except when it is, or would be, contrary to a child’s best interests. Section 60B(2)(e) provides that children have a right to enjoy their culture (including the right to enjoy their culture with other people who share that culture).
In determining a child’s best interests’ section 60CC provides that the court must weigh the benefit to the child of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court is to give greater weight to the need to protect the child from harm.
In Re Evelyn [16], the court held that there is no presumption in favour of a parent:
“There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.”
[16] (1998) FLC 92-807, paragraph 56.
Whilst there is no presumption in favour of a parent, the objects and principles underlying Part V11 of the Family Law Act 1975 make reference to parents and indicate the intention of the legislature to place the onus on parents to undertake those responsibilities primarily.[17]
[17]Souter & Meagher & Anor (2007) FAMCA18 per Cronin J,
Whilst the presumption of equal shared parental responsibility only applies to parents the court can make an order that a non-relative have parental responsibility. An order can be made that a non-parent have parental responsibility or share that responsibility with another person who may or may not be a parent. In the absence of an order of the court or parenting plan, only the “parents” have “parental responsibility”.[18] In determining what those orders should be, the best interests of the child remain the paramount consideration. The Full Court in Donnell & Dovey[19] made it clear that section 65DAA can have no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent.
[18] Donnell & Dovey [2010] FAMCAFC 15, 83.
[19] Ibid.
An interim hearing is a truncated process where there is little or no testing of the evidence. Thus the court is to be cautious in making findings on contentious facts and looks to agreed facts and issues not in dispute.[20] Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, it is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100] … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[20] Salah & Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCA 1346.
I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.
DISCUSSION AND DETERMINATION
It is not the subject of dispute that the child should maintain a relationship with all of the parties. The aunt and uncle propose that the child remain predominately living with them and live with the mother and father for a period of time each weekend including overnight. The mother and father seek that the child live predominately with them and that a “spend time with” order be made for the child to spend each alternate weekend with the aunt and uncle.
The case presented by the mother and father appears to have some inconsistencies. Whilst the mother asserts that she felt pressured to have the child to give to the aunt and uncle, her text message referred to earlier in these reasons appears to contradict this assertion. The mother and father assert that the child was never informally adopted according to Country B custom, yet their solicitor’s letter dated 16 January 2024 states that under:
…under that unrelenting pressure we are instructed by our client that she eventually relented and agreed to fall pregnant with a fourth child, that was to be adopted by [Ms Telito] and [Mr Telito].”[21]
[21] Exhibit MF1.
The parents’ correspondence to the aunt and uncle in January 2024 states that it was their view that it is in the child’s best interests to live with them as: -
·they are the biological parents of the child;
·the child was not cared for in a manner that the mother and father would have expected; and
·“they have also breached the agreement that X would be able to have unfettered access to his biological family.”
The mother and father make several complaints as to the child’s care by the aunt and uncle in their affidavit material that appear to raise some allegations as to the child being at some risk in their care. They depose that: -
·The aunt and uncle live in a small house. They have converted their garage into a bedroom as there are so many people living in their home. During the time that they have known them the aunt and uncle have had between 10 and 15 people living in their home. At the moment there are 10 people living there.
·In late 2022 they discovered that the child, who was 16 months old at the time, had left home and walked to a nearby playground on three separate occasions. On the first occasion the family could not find him so they “ran around looking for him” and found him behind the school a few houses from them playing with a stick with dirt. On the second occasion a worker at a nearby building returned the child home. On the third occasion parents at the playground contacted Police and he was taken by the Police to the station whilst the Police searched for his parents. The mother deposes that one female officer became upset as she did not want to return the child to the aunt and uncle. The police did so “but said they would conduct random welfare checks on the child and I understand they did that twice”.[22]
·The aunt and uncle are nearly twenty years older than the mother and father and “it worries me what will occur when he is older.”[23]
·The mother observed that the child was quite clingy with her subsequent to their unilateral retention of him.
·They are concerned as to how upset the child becomes when he is around the aunt and uncle and thus, whilst they are happy for the aunt and uncle to see him, they do not want there to be an order in place as to when this will occur. The mother deposes that she would like to be present when such time is occurring because she is concerned the aunt and uncle will “flee” with him and “they will not supervise him properly because of what has happened in the past.”[24]
[22] Respondent mother affidavit, paragraph 51-55.
[23] Ibid, paragraph 113.
[24] Affidavit of the mother, paragraph 113.
At the hearing of the Review Application Counsel for the mother and father appropriately conceded that the concerns raised by the mother and father as to the child having left their home on three occasions are not contained in any material produced by the New South Wales Police or the Department of Communities and Justice. The mother and father in any event propose that the child spend overnight time with the aunt and uncle and thus it cannot be submitted that he is at risk in their care. The thrust of the mother and father’s case as to why the child should live with them pending a final hearing is now broadly that:
·This is not simply a case where the mother and father now have regrets placing the child into the care of the aunt and uncle. The mother and father were entitled to have the child returned to their care at any time. Whilst the mother and father's actions in unilaterally retaining their child were perhaps not appropriate, their actions must be seen in the context of their cultural traditions.
·They became concerned as to the child's care in the latter part of 2023 and as to the child's birth certificate not reflecting his true biological father.
·There is a power imbalance between the parents and the aunt/uncle and members of the Country B community, and the aunt and uncle undertook coercive and controlling behaviour to obtain the child.
·The aunt and uncle made efforts to curtail the child's time with the parents.
·Whilst the orders made by the Senior Judicial Registrar will preserve the child's relationship with the parents to some degree, the child should be living with his parents and three siblings in the formative stages of his life. Whilst “perhaps” the child has considered the aunt and uncle to be his parents to date, he may now be experiencing confusion as to these arrangements in circumstances where C is not his sister but his cousin.
The crux of the mother and father’s case was clearly articulated by counsel: “We would like to have our son back in our primary care.” It was submitted that the court could be comforted from any concern as to the potential effect on the child of moving from his primary carers to the parents in circumstances where the child was spending substantial and significant time in the parents’ care previously. It was submitted that the child needs stability and consistency of arrangements pending a final hearing. The child already refers to the parents as “mum and dad” and the parents’ proposal is one that is akin to restoration processes undertaken in the Children’s Court.
It was submitted by the aunt and uncle that the child is young; he is about to turn three years of age. He had a dramatic change in his living arrangements in January of this year. His living arrangements were again changed pursuant to the orders made by the Senior Judicial Registrar approximately one month ago and pursuant to those orders the child has now been returned to live with the aunt and uncle. The parents are proposing a further significant change which may be reversed at a final hearing. The court would thus be loathe to consider a further change of living arrangements on an interim basis absent expert evidence.
The aunt and uncle submitted that the court is not going to be able to resolve the issue as to the circumstances giving rise to the child’s living arrangements at this interim stage. They submit that it is not disputed however that: -
·There was an agreement that the mother and father would conceive a child and place it into the care of the aunt and uncle to care for as their own. This type of arrangement occurs within the Country B community. What subsequently occurred is consistent with that cultural practice.
·The child has lived with the aunt and uncle since this time. They facilitated time between the child and the parents when they requested to do so. The child only appears to have been spending substantial and significant time with the parents since late 2023 although what time actually occurred is disputed.
·A reasonable concession was made at the interim hearing that the parents’ actions in unilaterally retaining the child were ill advised. It was an act of unfair deception by the mother and father.
·The parents did not facilitate time with the aunt and uncle upon their retention of the child and unilaterally changed his name.
There is no evidence that the child is at physical risk in the care of any of the parties. The mother gives no evidence as to the source of her alleged knowledge that the child went missing from the home of the aunt and uncle on three occasions. Material produced by the New South Wales Police Service and the Department of Communities and Justice does not provide support for the mother’s assertions that the Police have been involved in any way with the child whilst in the care of the aunt and uncle. I place little weight on the apparent criticism of the aunt and uncle’s living arrangements as the parents were aware as to these arrangements prior to placing the child into their care. It does them little credit to now level such criticism to support the relief sought by them on an interim basis.
While at this stage I do not make any positive findings in the circumstances of an abridged hearing, I consider it more likely than not that there was an agreement between the parties that the parents would conceive the child and place it into the care of the aunt and uncle. I am unable to make any findings as to the circumstances giving rise to such arrangement, nor the cultural practices surrounding such arrangement. I am thus unable to make any finding that the mother and father were entitled to have the child returned to their care upon their request.
Whilst the amount of time the child spent in the care of the parents is disputed, as stated earlier in these reasons it does not appear to be the subject of contest that from mid-2021 to the latter part of 2023 the child was living with the aunt and uncle and spending little time with the parents. For a period of time in the latter part of 2023 this time increased to several nights at a time on at least four occasions overnight. Overnight time ceased again in December 2023. I can thus not be comforted in the knowledge that the child has previously spent significant and substantial time with the parents as submitted by the mother and father.
Against this backdrop the mother’s actions in unilaterally removing the child from the aunt and uncle’s care was self-focussed and potentially psychologically harmful to the child. It raises significant concerns as to the parent’s ability to place the child’s best interests above their own desires. The potentially damaging effect of the removal of the child by the mother (and one can only assume with the consent of the father) from his primary carers was potentially further exacerbated by the parents then not facilitating any time between the child and his primary carers until they were ordered by this court to return the child to the aunt and uncle. An example of this lack of awareness and insight is the contained in the mother’s written evidence. The mother deposes that subsequent to her removing the child from the care of the aunt and uncle that he is:
…quite clingy to me and follows me everywhere in the house. He seems worried for me to be out of his sight. The other children understand this and are kind to him about it but it upsets me to see how upset he gets when I walk to another part of our house or use the toilet.[25]
[25] Mother’s affidavit, paragraph 107.
There appears to be no thought that this behaviour may be a consequence of the abrupt change in the child’s care arrangements as a consequence of the mother’s actions.
Whilst the parents criticise the aunt and uncle for limiting the child’s time with them, they themselves seek to significantly reduce the time the child spends with the aunt and uncle to one night a fortnight. Even if the court were to accept the parents’ assertion that for a period of time in the latter part of 2023 the child was spending time with the parties in an equal shared care arrangement on a rotating basis of four nights in each household (which is disputed by the aunt and uncle), such a proposal represents a significant change to this arrangement. It is a further significant change to the uncontested care arrangements that have been in place for the child since his birth. It is undisputed that for the majority of the child’s life he has been in the primary care of the aunt and uncle.
The mother and father appear to be of the view that the court should elevate the child’s relationship with his biological siblings over that of C, his biological cousin. This again fails to appreciate that this child has grown up to date living with C on a daily basis. Any confusion the child may now have as to his carers has come about from the actions of the parents in removing him from his primary carers. In circumstances where it is not disputed that the aunt and uncle had not told the child that he was not their biological son, it is unknown as to how it came about that he now refers to the parents as “mum and dad”.
The aunt and uncle propose that the child will continue to spend time with the mother and father in accordance with the arrangements that have been in place now for over a month and which allows the child to spend time with the parents and his siblings each week.
I agree with the submission made by the parents that the child needs stability. Whilst I have sympathy for the parents’ clearly stated wish that the child live with them, I am satisfied having regard to all of the above reasons that such stability lies with the child remaining in the care of the aunt and uncle. The child has been in their primary care since birth. I am not satisfied having regard to the above that to change the child’s care arrangements again is in his best interests. The orders sought by the aunt and uncle will allow the child’s relationship with the parents and his siblings to continue and thus the review of those orders will be dismissed.
In addition, the unilateral change in the child’s living arrangements have resulted in the parents unilaterally changing the child’s entire name. The parents submit that the child’s current legal name should remain as this is now reflected on his birth certificate and Medicare card, and in addition the parents’ have another child with the first name X. The aunt and uncle submit that the child’s name should remain as he has been known since birth.
The actions by the parents in changing the child’s name again appears to be focussed more on their own needs rather than what is in the best interests of the child. It is clearly unacceptable and confusing for this child who is not even three years of age to be known by two different names. I anticipate that an expert opinion will be provided if the matter proceeds to a final defended hearing as to the effect the parents’ unilateral actions have had on the child’s emotional and psychological welfare.
The child has been known as X for most of his life. Whilst I accept that this may be confusing for him when he is in the care of his parents, they depose that they refer to him as “X” in any event. The elder child X I would anticipate be able to comprehend the situation better than a not yet three-year-old child. Perhaps the elder X could be referred to as “X” whilst the child is in the parent’s household. I am thus satisfied that the child should continue to be known by the name he has held for most of his life and will make an order restraining the parties from referring to him in any other manner.
CONCLUSION
For the foregoing reasons I make the orders as set out above.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 24 April 2024
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