Tran & Ngo
[2012] FMCAfam 1352
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN & NGO | [2012] FMCAfam 1352 |
| FAMILY LAW – Children – parenting – orders – interim orders – best interests of the children – application by paternal Aunt for parenting orders – where children’s father deceased – where mother has left Australia and is residing in Vietnam – mental health issues – parental responsibility – best interests of the children. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 64B, 64C, 65C, 65DAA |
| Re J and M: Residence Application [2004] FMCAfam 656; (2005) 32 Fam LR 668 KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1998) FLC 92-847 R & M [2002] FMCAfam 279 |
| Applicant: | MS TRAN |
| Respondent: | MS NGO |
| File Number: | SYC 6085 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 December 2012 |
| Date of Last Submission: | 3 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | DT Legal Pty Ltd |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor |
ORDERS
UNTIL FURTHER ORDER
The Applicant is granted leave to proceed ex parte.
The children [X] born [in] 2004 and [Y] born [in] 2008 are to live with the Applicant Aunt.
The Applicant is to have parental responsibility to make decisions about any aspect of the care, welfare and development of the children [X] and [Y] including but not restricted to:
(a)Making decisions about enrolling the children in school and other aspects of the children’s education;
(b)Making decisions about the hospitalisation and other medical or dental treatment of the children; and
(c)All other aspects of parental responsibility for the children.
The Applicant and the Respondent are restrained from removing or causing or allowing the children [X] born [in] 2004 and [Y] born [in] 2008 to be removed from the Commonwealth of Australia SAVE AND EXCEPT that the Applicant is permitted to take the children from Australia to Vietnam for the purpose of a holiday between the date of this Order and 31 January 2013.
The Australian Federal Police are to place the names of the children [X] born [in] 2004 and [Y] born [in] 2008 on the Airport Watch List otherwise known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
The Applicant is to serve a sealed copy of these Orders on the Respondent by 3 January 2013;
The Application is adjourned to Monday 4 February 2013 at 10:00 am for mention only.
AND THE COURT NOTES that the Applicant advises that the Respondent was served in Vietnam only in the 24 hours immediately preceding the date the Application came before the Court.
IT IS NOTED that publication of this judgment under the pseudonym Tran & Ngo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6085 of 2012
| MS TRAN |
Applicant
And
| MS NGO |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the paternal Aunt of two children aged eight and four for parenting Orders that they should live with her. The Application is brought in circumstances of some urgency, as the Mother has apparently departed Australia for Vietnam and the children’s father is deceased. The Applicant seeks parenting orders not only to regularise the situation where the children are living in her household under her care but also to enable her to exercise parental responsibility for the children in such matters as enrolling them in school and attending to any medical needs they may have.
The Applicant also has a concern that the Mother may at some time attempt to take the children out of Australia to Vietnam. The Applicant deposes that the Mother has demonstrated erratic behaviour in the past and has a history of mental illness.
Orders Sought
The Applicant seeks interim Orders that:
a)the children should live with her;
b)that she be given authority to enrol the children at school, admit them into hospital or other medical care, and exercise the necessity parental authority;
c)that the parties be restrained from removing the children from Australia except that the Applicant be given permission to take the children to Vietnam for a holiday between 1 November 2012 and 31 January 2013 and also for each subsequent year; and
d)that the children’s names and particulars be placed on the Airport Watch List.
The Applicant will ask the Court to make final orders that the children should live with her, that she and the Respondent Mother should have equal shared parental responsibility for the children, and that the Mother should spend time with the children on alternate weekends and during the school holidays at times agreed between the parties when the mother is in Australia.
Background
The parties are originally from Vietnam.
The Applicant is the sister of the children’s father and, therefore, the children’s paternal Aunt.
The Applicant’s brother was married to the Respondent. There are two children of the marriage:
a)[X], born [in] 2004; and
b)[Y], who was born [in] 2008.
The Mother and Father and the two children used to live with the Applicant, her parents and her brother and sister in a suburb of Sydney. The children’s father died [in] 2011.
The Mother and the children continued to live in the family home until 4th July 2011, when the Mother left the home. The children remained living with the Applicant. The Mother would visit them twice a week and would telephone the paternal grandmother from time to time to inquire as to the children’s welfare.
In December 2011 the Applicant commenced proceedings against the Father’s estate in the Supreme Court of New South Wales in order to obtain funds for the two children.
On 18th January 2012 the Applicant, the Respondent and other family members attended a mediation session conducted by Catholic Care. It was agreed that the Mother should be permitted to return to live in the family home.
The Mother moved back into the family home in May 2012.
On 4th June 2012 the proceedings in the Supreme Court were discontinued.
The Mother abruptly left the family home on or about 17th June 2012. The Applicant subsequently found out that the Mother had returned to Vietnam and was living with her parents.
The Applicant commenced this Application on 16th October 2012, seeking parenting orders.
Evidence
The Applicant relies on the following:
a)her affidavit affirmed on 2nd October 2012;
b)the affidavit of her sister, Ms L, affirmed on 27th September 2012; and
c)the affidavit of her solicitor, David To, affirmed on 3rd October 2012.
In her affidavit, the Applicant sets out the relevant history and explains how the members of the extended paternal family have assisted with the care of the children since their birth. She deposed:
In my experience it is customary and a common feature of Vietnamese culture of multigenerational family members assisting in the care of the children. It is also customary for a son and his family to live with his parents even after marriage.[1]
[1] Affidavit of Ms Tran 2.10.2012 at paragraph [7]
The Applicant deposed in her affidavit that the Mother had been “unwilling and unable” to take care of the children on a daily basis which led to the children developing a stronger relationship with their paternal grandparents and other extended family members.
The Applicant also referred to the Mother’s history of mental illness, being depression, and stated that the Mother had been admitted to the mental health unit of [omitted] Hospital in or about June 2009 and again in June 2011.
The Applicant’s counsel, Ms Kennedy, tendered subpoenaed records from the Mental Health Unit of [omitted] Hospital in support of the claim that the Mother had undergone hospitalisation for diagnosed mental health problems.
The affidavit of the Applicant’s sister, Ms L, supported her evidence about the extended family taking responsibility for the care of the two children and the mother leaving Australia to reside in Vietnam.
Mr David To described in his affidavit how he had endeavoured to obtain copies of the children’s birth certificates, as the Mother had taken the original certificates with her when she left for Vietnam. He was unsuccessful in an application to the Registrar of Births, Deaths and Marriages because the Applicant was not the legal guardian of the children. He had also sought copies of the birth certificates from the solicitor who had acted previously acted for the Mother, but the solicitor declined to provide copies on the grounds of confidentiality.
The Relevant Law
In deciding whether to make a parenting order in relation to a child, a court is required by s.60CA of the Family Law Act 1975 to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
When making a parenting order, the Court is required by s.61DA(1) to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them, subject to certain exceptions.
If a court makes a parenting order that provides for children’s parents to have equal shared parental responsibility for them, s.65DAA requires the Court to consider the children spending equal time or substantial and significant time with each parent.
However, the circumstances of this case are that the children’s father is deceased, the Mother is out of the jurisdiction and the Application is being brought by the children’s paternal aunt.
It is clear that the Applicant may apply for a parenting order in respect of these two children. Section 64C 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.
Section 65C sets out who may apply for a parenting order:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
It has been held by Burr J in KAM v MJR[2] that s.65C(c) imposes a threshold test:
5.1.3In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
5.1.4That the degree or strength of the nexus or concern with the care, welfare and development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case…There may well be circumstances in this court where a mere “interests in” or “concern about” the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.
5.1.5The specific wording of s. 65C(c) appears top require demonstration of a concern with only one of the issues of care, welfare or development.[3][4]
[2] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
[3] (1998) 24 Fam LR 656 at 667 [5.1]
In Re J and M: Residence Application[5], Walters FM[6] dealt with a case where an application was made for a parenting order by the biological mother and her partner in a same sex relationship. His Honour found that both applicants could apply for a parenting order. They were both involved in all aspects of the care of the children and they considered themselves the joint parents of the children. His Honour held at [21}:
Ms F is a parent of the twins, and there can be no doubt that Ms B is a person concerned with their care, welfare or development.[7]
[5] [2004] FMCAfam 656; (2005) 32 Fam LR 668
[6] As his Honour then was, now Walters J of the Family Court of Western Australia
[7] (2005) 32 Fam LR 668 at 671 [21]
Against this view, in R & M[8], Driver FM dismissed an application by a friend of the recently-deceased father of the child concerned, even though his Honour found that the applicant was “passionately concerned about the welfare of the child”[9]. However, he found that the applicant had had no prior involvement with the care, welfare or development of the child and therefore had no standing to bring the application.
[8] [2002] FMCAfam 279
[9] [2002] FMCAfam 279 at [15]
Subsection 64B(2) of the Act sets out a list of matters with which a parenting order may deal, including:
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.
Conclusions
In this matter, the Applicant is the children’s paternal aunt. There is clear evidence of her prior involvement in the children’s care, welfare and development throughout their lives, along with the involvement of other members of the children’s paternal extended family. The Applicant is a person who may apply for a parenting order in relation to the children, as she meets the threshold test in s.65C(c) of the Act.
The best interests of the children remain the paramount consideration. It is noteworthy that the children’s mother has left Australia and there is no evidence of any intention to return.
It is in the children’s best interests that family members who have had a close and ongoing relationship with the children should be given the legal authority to continue to do so, and the Applicant aunt should have interim orders to permit her to exercise parental authority in respect of these children until the final hearing.
It does not appear to be appropriate for the Mother to remove the children from Australia at this time, even though there is no evidence that she intends to do so.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 December 2012
[4] It should be noted that this decision is wrongly described in Australian Family Law Volume 1 (Butterworths) at 1294.22 [s. 65C.8]
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