TINASHE

[2021] FamCA 41

FAMILY COURT OF AUSTRALIA

TINASHE [2021] FamCA 41

FAMILY LAW – children, infants or minors – parenting orders – proper parties – child born via IVF – statutes – interpretation – (CTH) Family Law Act 1975 – Interaction with prescribed State and Territory laws – extent to which Regulations may prescribe State and Territory laws – section 60H(2) does not authorise Regulations to pick up State and Territory laws determining who is not a parent – whether ordinary meaning of “parent” excludes mere donor of genetic material – circumstances of donation of genetic material relevant to assessment – waiver.

Family Law Act 1975 (Cth) ss 4, 60H(2), 61C, 64C, 65C, 69C
Family Law Regulations 1984 (Cth) reg 12CA
Judiciary Act1903 (Cth) s 79, Division 1 of Part VII
Parentage Act 2004 (ACT) ss 11, 11(2), s 11(3)
Status of Children Act 1978 (Qld) ss 2, 14, 20, 20(b), 23

Baker & Landon (2010) 238 FLR 210
Masson v Parsons (2019) 266 CLR 554
Re Mark (2004) 31 Fam LR 162
Stone & Bowman (Unreported, Family Court of Australia, Faulks J, 28 February 2000)
Patrick Parkinson, Artificial Conception and the Legal Definition of a ‘Parent’

APPLICANT: Ms Tinashe

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 1744 of 2020

DATE DELIVERED: 5 February 2021

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 September 2020 & 5 February 2021

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal

Orders

1. There are no other proper parties to this Application than Ms Tinashe and the Independent Children's Lawyer.

2. Ms Tinashe has sole parental responsibility for X, born … 2016.

3. X shall live with Ms Tinashe.

4. I discharge the appointment of the Independent Children’s Lawyer in 14 days’ time. 

5. I request that the Independent Children’s Lawyer advise the relevant ACT Department of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1744 of 2020

Ms Tinashe

Applicant

REASONS FOR JUDGMENT

1. This matter concerns the care, welfare and development of X, the nephew of the applicant.  The particular circumstances that bring the matter before the Court involve the death of X’s mother, the applicant’s sister, Ms C, in mid 2020.

2. Since the mother’s death, X has been cared for by the applicant, who intends to continue to care for X.  Consistently with this intention, the applicant commenced proceedings in this Court in order to obtain sole parental responsibility, along with orders that X will live with her.  Such orders were initially made on an interim basis.

3. The Application, as filed, named no respondent.  This is reflective of the circumstances of X’s conception, which was via IVF using a donor egg and donor sperm.  No person has been identified as the provider of either the donor egg or donor sperm, which were obtained via a donor clinic, and, correspondingly, the donors have had no involvement in X’s life.  Under the terms of the operation of the clinic, the identity of the donors remains anonymous to the extent that it is permitted to do so under State or Territory law.

Proper parties

1. The first issue to be dealt with is as to the proper parties to the proceedings.

2. Sections 69C and 65C of the Family Law Act 1975 (Cth) provide that these proceedings, which concern parenting orders for X may be instituted by:

   (a) either or both of the child’s parents;

   (b) the child; or

   (c) a grandparent of the child; or

   (d) any other person concerned with the care, welfare or development of the child.

3. The applicant, who was involved with X prior to the mother’s death, is his aunt, and who now has his full time care is a person concerned with his care, welfare and development and, accordingly, is entitled to be an applicant and is thereby a proper party to the proceedings. As a person concerned with X’s care welfare and development, her pursuit of parenting orders in respect of X is further authorised by s 64C of the Act.

4. The parents of a child are also proper parties. Section 61C of the Act provides that:

   (1) Each of the parents of a child who is not 18 has parental responsibility for the child.

   (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents.  It is not effected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

   (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

5. The Application concerns the allocation of parental responsibility and so, where there are parents, concerns the parental responsibility held by those parents.

6. This raises the issue of who are X’s parents.

7. X’s conception falls within the definition at s 4 of the Act of artificial conception procedure which is defined to include:

   (a) artificial insemination; and

   (b) the implantation of an embryo in the body of a woman.

8. Section 60H(2) then provides:

   If:

   (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

   (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

   then, whether or not the child is biologically the child of the woman, the child is her child for the purposes of this Act.

9. Prescribed laws under this subsection are set out at Regulation 12CA of the Family Law Regulations 1984 (Cth). Given that X was born in Queensland, but is currently a resident of the Australian Capital Territory, potentially the prescribed laws in relation to those two jurisdictions have application. For Queensland the prescribed law is s 23 of the Status of Children Act 1978 (‘the Queensland Act’) and for the ACT the prescribed laws are s 11(2) and s 11(3) of the Parentage Act 2004 (‘the ACT Act’).

10. The Queensland Act provides that:

    23 Implantation procedure—Presumption as to status where donor

    (1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—

    (a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or

    (b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man who is not the husband of the first-mentioned woman.

    (2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—

    (a) the woman who has undergone the fertilisation procedure is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and

    (b) the woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.

    (3) A presumption of law that arises by virtue of subsection (2) is irrebuttable.

    (4) Also, the man who produced the semen has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at any time, he becomes the husband of the child’s mother.

    (5) The rights and liabilities of a man who produced the semen and becomes the husband of the mother of a child born as a result of a pregnancy mentioned in subsection (2) are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, are restricted to rights and liabilities that arise after the man becomes the husband of the child’s mother.

11. Section 20 of the Queensland Act applies s 23 as follows:

    20 Application of subdivision 3

    This subdivision applies if—

    (a) a married woman undergoes a fertilisation procedure other than with her husband’s consent; or

    (b) a woman who is not married and does not have a de facto partner or civil partner undergoes a fertilisation procedure; or

    (c) a woman who has a de facto partner undergoes a fertilisation procedure other than with her partner’s consent; or

    (d) a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.

12. Section 14 of the Queensland Act further applies s 23 as follows:

    14 Application

    (1) The provisions of division 2, subdivision 2 and section21 apply—

    (a) in respect of a pregnancy referred to in section 17, 18, 19 or 21, whether the pregnancy occurred before or after the passing of the Status of Children ActAmendment Act 1988 and whether or not it resulted from a procedure carried out in Queensland; and

    (b) in respect of any child born as a result of a pregnancy referred to in section17, 18, 19 or 21, whether or not the child was born before or after the passing of the Status of Children Act Amendment Act 1988.

    (2) Nothing in any provision of division 2, subdivision 2 or section 21 affects the vesting in possession or in interest of any property that occurred before the passing of the Status of Children Act Amendment Act 1988.

    (3) The provisions of division 2, subdivision 3 (other than section 21) apply—

    (a) in relation to a pregnancy mentioned in section 22 or 23, whether the pregnancy happened before or after the commencement of the Guardianship and Administration and Other Acts Amendment Act 2008, part 5 and whether or not it resulted from a procedure carried out in Queensland; and

    (b) in relation to any child born as a result of a pregnancy mentioned in section 22 or 23, whether or not the child was born before or after the commencement of the Guardianship and Administration and Other Acts Amendment Act 2008, part 5.

    (4) Nothing in any provision of division 2, subdivision 3 (other than section 21) affects the vesting in possession or in interest of any property that happened before the commencement of the Guardianship and Administration and Other Acts Amendment Act 2008, part 5.

    (5) Divisions 3 and 4 apply to happenings before or after the commencement of the divisions.

    Example of a happening—

    the registration of the birth of a child

13. Finally, s 2 of the Queensland Act applies the Act as follows:

    This Act applies to a person, whether or not—

    (a) the person—

    (i) was born in the State; or

    (ii) was born before or after the commencement of this section; or

    (iii) is a child; or

    (b) the person’s father or mother has ever been domiciled in the State.

14. Although the Regulations only refer to s 23 of the Queensland Act, the provision can only have application as it is given application by the balance of the Queensland Act. The applying provisions are intrinsically a part of s 23 and in that sense are picked up by s 60H(2). They give the widest application and, on their terms, they apply to X.

15. X’s mother fell within the description at s 20(b) of the Queensland Act, and X’s conception within s 23, applying s 23 with the effect that there is an irrebuttable presumption that the mother is X’s mother.

16. Section 23, however, goes further.  It applies an irrebuttable presumption that the woman who produced the ovum is not the mother, and that the man who produced the semen has no rights or liabilities as a result, unless he and the Mother marry.  Such a marriage did not occur here.  On its terms, this excludes such a person from holding parental responsibility.

17. Similarly, the Territory provisions also appear to apply at large, containing no limitation based on where a child was either conceived or born. Section 11 specifically applies the provision to a child even though the child was neither conceived nor born in the ACT. Assuming their applicability to X as a resident of the ACT, s 11 of the ACT Act is set out below. Although only s 11(2) and s 11(3) are prescribed, their effect is determined by subsections (1), (7) and (9). The provision is in the following terms:

    Presumptions arising from procedure

    (1)     This section sets out presumptions that arise if a person undergoes a procedure as a result of which the person becomes pregnant.

    (2)     The person is conclusively presumed to be a parent of any child born as a result of the pregnancy.

    (3)     If the ovum used in the procedure was produced by another person other than the person's domestic partner at the time of the procedure, the person who produced the ovum is conclusively presumed not to be a parent of any child born as a result of the pregnancy.

    (4)     If semen used in the procedure was produced by another person other than the person's domestic partner at the time of the procedure, the person who produced the semen is conclusively presumed not to be a parent of any child born as a result of the pregnancy.

    (5)     If the person undergoes the procedure with the consent of the person's domestic partner at the time of the procedure, the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy.

    (6)     For subsection (5), a person is presumed to consent to the carrying out of a procedure in relation to the person's domestic partner, but the presumption is rebuttable.

    (7)     The presumptions set out in this section apply—

    (a)    whenever the pregnancy happened and whether or not it resulted from a procedure carried out in the ACT; and

    (b) in relation to any child born as a result of the pregnancy, whether or not the child was born in the ACT.

    (8)     However, this section does not affect the vesting in possession or in interest of any property that happened before the commencement of this Act.

    (9)     In this section:

    procedure means—

    (a)     artificial insemination; or

    (b)the procedure of transferring into the uterus of a person an embryo derived from an ovum fertilised outside the person's body; or

    (c)     any other way (whether medically assisted or not) by which a person can become pregnant other than by having sexual intercourse with a person.  

18. Under the Territory provisions, the mother is X’s mother. Section 11(3) of the Territory Act, purportedly picked up by s 60H(2) provides that the ovum donor is not a parent.

19. An issue arises as to the effect of the provisions insofar as they determine who is, and who is not a parent.

20. The interaction of State and Territory law with the Family Law Act was dealt with by the High Court in the case of Masson v Parsons.[1] In that case, the High Court dealt with whether the New South Wales provisions relating to the same subject matter were picked up by operation of s 79 of the Judiciary Act1903 (Cth) or as a “part of the single composite body of law operating throughout the Commonwealth which, as a valid law of the State of New South Wales, applies of its own force in federal jurisdiction.”[2] The plurality determined that they were not as the Commonwealth had “otherwise provided” in a “complete statement of the law” in relation to that subject matter in Division 1 of Part VII of the Act, and further that the Commonwealth law prevails over the inconsistent State law:

    Such is the structure and evident purpose of the provisions of that Division that, although ss 60G and 60H are not exhaustive of the persons who may qualify under the Family Law Act as parents of children born of artificial conception procedures, if a person qualifies as the child’s parent either under s 60G by reason of adoption or under s 60H, or according to ordinary acceptation of the word “parent”, State provisions like ss 14(2) and 14(4) of the Status of Children Act are irrelevant. Division 1 of Pt VII of the Family Law Act evinces an intention to be a complete statement of the law governing the subject matter to which ss 14(2) and 14(4) apply and thereby evinces a negative implication that nothing other than what the Commonwealth law provides with respect to that subject matter is to be the subject of legislation.

    [1]Masson v Parsons (2019) 266 CLR 554.

    [2]Masson v Parsons (2019) 266 CLR 554 [50].

21. In short, the High Court determined that the Family Law Act has fully dealt with the concept of “parent” in the current circumstances, either by virtue of the operation of s 60H, or by application of the “contemporary understanding of the word ‘parent’ and the relevant facts and circumstances of the case at hand”.[3]  It may be observed that this approach was consistent with the approaches adopted by Brown J in Re Mark[4] and Faulks J in Stone v Bowman[5].

    [3] Ibid [54].

    [4]Re Mark (2004) 31 Fam LR 162.

    [5]Stone & Bowman (Unreported, Family Court of Australia, Faulks J, 28 February 2000).

22. Absent the picking up of a State or Territory provision by operation of s 60H(2), such provisions have no role in determining who a child’s parents are.

23. Both the Queensland and Territory provisions prescribed by the Regulations as picked up by s 60H(2) deal with the issue of whether the child is the child of the person to whom the child is born. The result of the application of either the Queensland or the Territory provisions is that the mother is X’s mother.

24. However, both the Queensland and Territory Acts, as identified in the Regulations, purport to cover the issue of who is, or who is not a parent, beyond the woman to whom the child is born.  The issue arises of whether they can do so.

25. Analysis of the combined effect of s 60H(2) and Masson indicates that they cannot.

26. As noted above, Masson identifies that the question of who is a parent is dealt with completely by the Act. In the current case a person is either a parent by virtue of the operation of s 60H(2) or because they fall within the “contemporary understanding” of “parent”. Therefore, for the exclusionary provisions under State or Territory law to apply, they must be picked up by s 60H(2). Although the whole of s 23 of the Queensland Act and s 11(3) of the Territory Act, which each deal with who is not a parent, are identified by the Regulations as prescribed for the purposes of s 60H(2), insofar as they deal with who is not a parent they cannot be picked up.

27. This result is mandated by the text of s 60H(2) itself, which only provides for the picking up of the State or Territory law in order to determine whether the child is a child of the woman to whom the child was born. Hence, if the State or Territory laws provide that the child is the child of the woman to whom the child was born, then the woman is a parent for the purposes of the Act.

28. Section 60H(2) makes no provision for the determination of who is not a parent, nor for who is otherwise a parent. Who else is or is not a parent is to be determined, in accordance with Masson  by the consideration of whether such a person falls within the “contemporary understanding” of “parent.”

Does X have parents apart from the mother?

1. As explained by the plurality in Masson (with my emphasis):

   [44] As was earlier observed, Div 1 of Pt VII of the Family Law Act proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning. In some respects, most notably in s 60H, the Family Law Act may be seen as expanding the conception of “parent” beyond ordinary acceptation by adding a limited range of persons who stand in specified relationships to children born of artificial conception procedures. Additionally, under s 60G, a person may qualify as a parent of a child born of an artificial conception procedure by reason of the person’s adoption of the child under the law of a State or Territory. But ss 60H and 60G are not exhaustive of the classes of persons who may qualify as parents of children born of artificial conception procedures. It remains that, apart from those specific provisions, the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”. And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.

1. In relation to a person who has provided sperm in relation to the conception of a child, the High Court observed the following:

   [54]  As has been explained, the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found — and the finding is not disputed — the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.

   [55]  It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”. In the circumstances of this case, no reason has been shown to doubt the primary judge’s conclusion that the appellant is a parent of his daughter.

2. The plurality left open the case of whether a mere sperm donor should be considered to be a parent. Given the specific reference to a person who is no more than a sperm donor, the plurality does not exclude the possibility that a person who does no more than provide genetic material may fall short of being a parent. 

3. The plurality imposed upon first instance judges the responsibility to determine whether the circumstances of a particular case fall within the “ordinary accepted” meaning of the word “parent.”  This is not a matter of discretion, but a matter of fact finding allied with a legal conclusion as to the scope of the meaning.  It however, is a factual determination not aided by sharp boundaries.

4. The question then remains as to whether, in the particular circumstances of this case, there is a parent other than the mother. 

5. The affidavit of Mr B, of the relevant fertility clinic, the genetic donors remain anonymous save that their details are retained by the clinic and in Victorian and NSW registers, to enable a donor conceived person to know their identity once such person turns 18 years old.

6. The anonymity forms a practical barrier to any interaction between the donor(s) and the person conceived as a result of the donated material, unless that person has reached the age of 18 years old, by which time there could be no concept of parental responsibility attributable to the donor even had the conception taken place in any other manner.  The barriers set up are such as to preclude any interaction, contribution, or exercise of responsibility or performance of obligation that might be anticipated as a part of a notion of what it means to be a parent.

7. Despite his overarching assessment of the plurality in Masson in relation to biological  progenitors, in his article Artificial Conception and the Legal Definition of a ‘Parent’, Patrick Parkinson, Dean of Law of the University of Queensland observed:

   It is unlikely that the ordinary meaning of the term ‘parent’ would include the anonymous donor to a sperm bank who knows that his sperm may be used to conceive a number of children but who is otherwise not intending to have any role in parenting.

8. In reaching this conclusion, he relied on the earlier analysis of this question by FM Reithmuller in Baker & Landon.[6]  There, his Honour said of the anonymous sperm donor:

   The donor, in this case, does not appear to have procreated or created the child in the relevant sense as he had no contact with, nor ever knew of the mother. In this case the donor would not be aware of the actual use made of the genetic material, or if it was used at all. It is difficult to describe him as a person who had ‘begotten’ the child. A person in this position cannot have been contemplated as a person who would have shared parental responsibility for the child under the Family Law Act. This is in sharp contrast to the facts in Re Mark where the involvement of the man who provided the sperm desired, and directly facilitated, the particular conception.

   [6] Baker & Landon (2010) 238 FLR 210.

9. Although the ordinary meaning of “parent,” while easy to determine in relation to almost every case, is lacking in bright line edges in divergent cases, it is difficult to conceive of it including anonymous donors who have provided their contribution to the child in a manner that prevents their ready identification to the Mother or X, prevents their involvement in X’s life, and prevents any form of responsibility in respect of X.  There is no facility for the donors to even know of X.

10. Under those circumstances, it may be concluded that whatever ground may be covered by the ordinary meaning of “parent,” it does not cover a person who is an anonymous donor in the sense of the donors in this case.

11. Accordingly, the donors are not necessary parties to the case.

Alternative view

1. If I am wrong in my assessment that the genetic donors should not be regarded as parents, there remains a basis for determining that they are not necessary parties to the application.

2. In this case, each of them provided their contribution on a basis that was anonymous to the Mother.  That anonymity provides a strong insulator against any interest in, or involvement with a child conceived by the use of those contributions.  The use of such an insulation is persuasive of a renunciation of any claim to such a child, including an interest in decisions made in relation to the parenting of the child.  Such a renunciation operates as an effective waiver in respect of involvement in parenting proceedings.

3. Under those circumstances, there is no requirement that such persons be identified and joined to the current proceedings.

Absence of a respondent

1. Although an Independent Children’s Lawyer was appointed shortly after the Initiating Application was filed, there is no true respondent to the application.  This presents no bar to the making of the orders sought by the applicant.  As identified earlier in the judgment, the applicant is a proper applicant for a parenting order.  The authority to decide the matters raised by the applicant is granted to the Family Court of Australia by virtue of either s 69H, to determine parenting orders relating to X, or s 67ZC, as the order relates to the welfare of X.  That authority is not constrained by the absence of a respondent.

Sole parental responsibility

1. The orders sought in these proceedings are for Ms Tinashe to have sole parental responsibility for her nephew X and for X to live with her.  Between these orders there is encompassed all of the responsibilities and decision-making authority of a parent.  Those orders are sought in circumstances where X now has no parent, he is orphaned.  He is, however, blessed by the involvement of his aunt in his life, his aunt being the applicant in these proceedings. 

2. The affidavit material filed by the aunt, and the family report that has been prepared show significant and involved relationship with X on the part of the aunt before X’s mother's death in June 2020.  They show connection between X and his cousin, who is the daughter of the aunt, both of whom with he is living.  They show that X’s mother considered that the aunt would be the person best placed to parent X after she passed, and that has proven to be the case as amid of her own grief at the loss of her sister the aunt has undertaken the important but heavy task of parenting X. 

3. The determination of orders in this case is reliant upon what is in X’s best interests.  The Family Law Act 1975 (Cth) (the Act) specifies that his best interests are to be determined on the basis of the considerations set out at s 60CC of the Act. Not all of those are relevant in these proceedings but those which are dominant are s 60CC(3)(b), being the nature of the relationships that X has in his life, (d), the effect of any change of circumstances upon X and (f), the capacity of persons involved in X’s life to look after him.

4. The relationship between the aunt and X is a supportive, caring, nurturing relationship.  That is a matter that is evidenced well by the family report.  It is a relationship within which she can exercise her capacity to provide X with financial, physical, emotional and intellectual support and she has been assessed as able to do so, seen for example, at [48] of the family report where after seeing the aunt with X the family report writer said

   This observation raises no concerns about X’s relationship with his maternal aunt or Y.  Within the observational context, this observation indicates that the maternal aunt is capable of providing a nurturing and supportive environment for X and Y.

5. Testing the alternative to the orders that are sought by the aunt raises the spectre of a severe change in circumstances for X, for example, X being forced into foster care. 

6. The family report writer noted in relation to X [50]

   Clearly, the loss and instability that X has experienced is likely to have been traumatic for him, and probably adversely affected his sense of security.  X would have looked to his mother to love him unconditionally and protect him from the painful realities of life.  When a parent passes, life for child often becomes markedly more frightening and uncertain, leaving them to fear what may happen next.

7. At [52] the family report writer continued:

   Not only has X lost his mother, he has simultaneously had to adjust to living interstate in a new household, and is likely to have felt a sense of loss due to losing regular contact with his maternal grandfather and peers.  As such, this may have magnified the trauma he has experienced due to losing his mother. 

8. However, the family report writer went on to say

   To her credit, the maternal aunt appears to have worked meticulously to support X smoothly transitioning into her care.

9. And at [55] in relation to the aunt’s proposal she notes

   The main advantage of this proposal, is that it is likely to provide X with stability, and it appears that he is developing a secure bond with her.

10. Noting the aunt's capacity she went on to say

    …it is noted that the maternal aunt appears to have diligently ensured that her, X and Y… have a robust support network, to assist them if such difficulties emerge.  Moreover, the maternal grandmother expressed confidence in the maternal aunt’s parenting capacity, and confirmed that she is available to support the maternal aunt. 

11. These matters, along with others, lead to the following conclusion being made by the family report writer

    she [the aunt] has the ability to provide X with a supportive and nurturing environment, and that she is well supported by her family and external services.  Whilst the maternal aunt candidly acknowledged that integrating X into her in her daughter's life has at times been difficult, she spoke of conscientiously accessing support services in an attempt to adapt her parenting to meet X’s needs and build his resilience.  Similarly, the maternal aunt's daughter Y, reported that the major changes in her life since X joined her household had on occasions been testing.  However, Y expressed a clear desire for X to remain part of their household.  In any event, currently the maternal aunt seems to be the only person in X’s family who is available to care for him.  It is for these reasons it is considered to be in X’s best interest to live with the maternal aunt and for her to have sole parental responsibility of him.

12. Accordingly, it is in X best interests that orders for sole parental responsibility and for X to live with his aunt are made as she seeks.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 February 2021.

Associate:

Date:  5 February 2021