Zemmpler & Anor and Page & Anor
[2012] FamCA 689
FAMILY COURT OF AUSTRALIA
| ZEMMPLER AND ANOR & PAGE AND ANOR | [2012] FamCA 689 |
| FAMILY LAW – CHILDREN – With whom a child lives, with whom a child spends time - with whom a child communicates – Order that child live with non biological parents – order that non biological parents have sole parental responsibility for the child |
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Mr Zemmpler and Mr Ryall |
| RESPONDENTS: | Ms Page and Mr Tietzel |
| FILE NUMBER: | HBC | 215 | of | 2012 |
| DATE DELIVERED: | 24 July 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 24 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Starkey |
| SOLICITOR FOR THE APPLICANT: | Ogilvie Jennings |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: |
Orders
In the proceedings of Ryall and Zemmpler I make the following orders:
Mr Zemmpler and Mr Ryall (“the applicants”) have equal shared parental responsibilty for K born … February 2008 (“the child”).
The child live with the applicants.
The applicants be permitted to sign all documents and do all acts to change the child’s surname.
The child spend time with the respondent mother and respondent father and biological siblings as agreed between the adults.
THE COURT NOTES
(a) The applicants will make available to the child, as he gets older, an independent and professional qualified person to assist in relation to his biological family.
(b)The applicants will have available photographs and maintain up to date photographs of the biological family and the child’s photograph album.
(c)The applicants will provide to the biological parents occasional photographs such a birthday or school photographs and inform them if the child suffers any serious ilness or injury.
(d)The applicants will, as far as practicable, organise face to face meetings between the child and his biological parents and siblings, as the applicants consider meet the best interests of the child.
Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zemmpler and Anor & Page and 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 HOBART |
FILE NUMBER: HBC 215 of 2012
| Mr Zemmpler AND Mr Ryall |
Applicants
And
| Ms Page AND Mr Tietzel |
Respondents
REASONS FOR JUDGMENT
Mr Zemmpler and Mr Ryall (“the applicant’s”) have made an application to this Court for consent orders that they have parental responsibility and parenting for the child, K born in February 2008 (“the child”) who is now aged about four. K is the biological child of Ms Page and Mr Tietzel who are the respondents to these proceedings and who consented to the orders which the applicants sought.
The matter was started in this Court on 26 March 2012 by way of the application for consent orders. It being an application for orders that a child live with someone other than his biological parents, the matter was referred to me and came before me on 13 June of this year at which time I ordered a family report. That Family Report[1] is before me today. I also have an affidavit of the applicants in some detail, sworn 23 July 2012, which provides a background and details of the factors I must have regard to under section 60CC of the Family Law Act 1975 (Cth).
[1] Dated the 12 June 2012.
These proceedings were heard in the absence of the biological parents but with their consent. The history of this matter and the status of the applicants, the respondents and the child are set out in paragraphs 6 through to 17 in the Family Report which is as follows:-
6.Mr Ryall, 32 years, and Mr Zemmpler, 42 years, have been together in a same sex relationship for 13 years. They had a commitment ceremony about 12 years ago. They are jointly purchasing a home in Hobart where they reside with the child. Mr Ryall works full time in finance and Mr Zemmpler works full time in the hospitality industry. Mr Zemmpler currently works Tuesday through to Saturday and Mr Ryall works Monday to Friday.
Mr Ryall comes from a large extended family that mainly lives on the North West Coast of Tasmania. Mr Zemmpler has parents living in Southern Tasmania, and has a married brother with two teenage children also in Tasmania. Mr Zemmpler’s parents care for the child on Wednesday and Thursday of each week. Both Mr Ryall and Mr Zemmpler indicated that their families are very supportive of them as a couple and of their decision to be full time parents.
7.Mr Ryall and Mr Zemmpler reported that they had wanted to have a family and have friends who are same-sex couples with children. One such couple is related to Ms N and hence Mr and Ms N were aware of Mr Ryall’s and Mr Zemmpler’s interest in being parents.
Mr and Ms N know Ms Page as her mother is a neighbour. They undertook to care for the child when Ms Page wanted to relinquish him and then they offered the child to Mr Ryalls and Mr Zemmpler. It was subsequently worked out between them that the child would spend three nights per week (Tuesday to Friday) with Mr and Ms N and four nights per week (Friday to Tuesday) with Mr Ryall and Mr Zemmpler. There appears to have been good communication between these two households and Mr Ryall explained that they would have meals at each other’s homes from time to time. They said that Mr and Ms N love the child and that he refers to them as Nan and Pop. Since moving to live with Mr Ryall and Mr Zemmpler full time in February, the child has continued to spend each Friday with Mr and Mrs N.
8.Mr Ryall and Mr Zemmpler impressed as loving and committed parents. Mr Ryall stated “We’ve totally fallen in love with this little boy as our own”. They produced a photo album with pictures of the child at their home, away on holidays with them and of his birthday parties. They are very proud of him describing him as a very open and confident little boy. Mr Ryall provided a letter from the director of the child care centre where the child attends on Tuesdays (although previous to coming into their care he attended there three days per week) which was supportive of their care of the child and also commented that the child was progressing well and more settled since being full time in their care.
9.They appear to have carefully considered the issues that might arise in being a same sex couple bringing up a child. For example, by discussing this openly with the principal of H School where they have enrolled the child for next year.
10.Mr Ryall and Mr Zemmpler indicated that they were aware of the difficulties and challenges that Ms Page and Mr Tietzel have faced in life and continue to experience. They do not intend to exclude them from the child’s life. Nevertheless they indicated that they would act in an appropriately protective way if this became necessary for the child’s welfare.
11.Ms Page, 25 years, is a very thin woman who was open and helpful in sharing information and expressing opinions about her situation and family. She and Mr Tietzel, 31 years, have two other children, S, nearly 13 years and T, 5 years. According to Ms Page, Mr Tietzel has another child of a similar age to T who he does not have anything to do with (although he does pay child support). Ms Page mentioned that the mother of this child had a restraint order placed on Ms Page and she thought the order was about to expire. Ms Page said that she had given this woman “a hiding” after being provoked by her.
12.Ms Page reported that Mr Tietzel was incarcerated last month. She, T and S will be visiting him in gaol. Ms Page indicated that she has financial and other worries at present including the need to find new rental accommodation for herself and T due to her landlady needing to sell the property. She said that she seeks assistance from time to time from community based agencies such as Anglicare and Centacare. She stated that she is not currently on any medication nor facing any criminal charges.
Ms Page’s background and that of Mr Tietzel were not fully explored. Ms Page did however indicate that Mr Tietzel had been in gaol several times for assaults, burglary and escaping custody. As mentioned earlier in this report Mr Tietzel is in gaol having been sentenced last month for a term of 18 months imprisonment for driving without a licence. Ms Page said that she had been in gaol only once about three years ago (for three days) for driving without a licence.
13.Ms Page explained that she “didn’t bond with [the child]”. She was asked about whether she might have had post natal depression but she said that she did not. She said that this lack of a bond had also occurred with her oldest child S who was born when she was only 13 years of age. S has apparently been raised mainly by Ms Page’s mother. Ms Page explained that she and her mother both have a room for S in their homes and S chooses where he wants to stay. She reported that she and S fight.
Ms Page stated that “the welfare” had taken S and T from her care for a 12 month period when T was eight months of age. She said that this was because S was not attending school and T had not been immunized. Ms Page reported that “the welfare” had placed the children with her mother and she had therefore been able to see them during this time.
Ms Page further explained that Mr Tietzel had also not bonded with the child and that T their daughter had never liked the child. She described that when the child was a baby T was “very cruel” to the child – for example dropping him out of the cot. She described how testing this time had been for her with T constantly hurting or disturbing the child.
14.Ms Page said that she had offered the child to her mother and her sister to raise however neither wanted him; her mother felt she had taken on enough with the care of S and her sister has a boy of her own who is “a handful”. Ms Page knew Mr and Ms N and placed the child with them. She said that she did not visit the child after giving him to Mr and Ms N, although “I could have if I wanted to but I didn’t”. Ms Page reported that her mother and sister visited the child a few times. She said that S had visited and that he had a bond with the child. She stated that S would most recently have seen the child “a few weeks back”. Ms Page said that she had seen the child last month when he was out the front of Mr and Ms N’s home.* Ms Page reported that she had spoken to the child and he had told her he was off to the park. It was not clear from this information whether the child understands that Ms Page is his mother.
15.Ms Page accepted the Mr and Ms N’s decision to share the care of the child with Mr Ryall and Mr Zemmpler. Ms Page had not met, nor apparently asked to meet, the applicants until the need arose for them to have contact in relation to the proposed consent orders. She then met Mr Ryall a couple of times when documents needed to be signed. Mr Ryall also briefly met Mr Tietzel. Ms Page and Mr Zemmpler met for the first time on the day of the family report interviews. Ms Page said “I figured they (Mr [Ryall] and Mr [Zemmpler]) could give him ([the child]) a better life than I could” and she also said that the child “seems happy with them” as she had apparently seen them together at a nearby Shopping Centre. Ms Page’s views on the child being raised by a same sex couple were explored and it was apparent that she has an open attitude to people who are same sex attracted. She stated “I can’t see it as being a problem”.
16.Ms Page returned to the theme of wanting the child to have a better life growing up than she and Mr Tietzel have had which she referred to as “a gaol life or a life on the streets”. She reported that Mr Tietzel shares this view. She stated “I feel I gave him ([the child]) up for the right reasons”.
17.In relation to future contact or communication with the child, Ms Page said that she “can just call them”. She thought that this might happen once every six or twelve months. Ms Page stated that if the child wanted to see her, Mr Tietzel or S, then “we (meaning her, Mr [Ryall], Mr [Zemmpler]) will organize it”.
* Presumably on a Friday when she had gone to visit her mother nearby.
The Family Consultant had the advantage of speaking to the mother and in her evaluation said a number of things.
Firstly, that the mother has not bonded with the child, but is concerned about his best interest. Being aware and I quote from the Family Consultant who said “being aware that she, Ms Page, is not able to love him in a way that would enable him to feel secure nor feeling able to raise him, she has placed him with other people who can do so.”[2]
[2] At paragraph 22 of the Family Report dated the 12 June 2012.
The child has been in the care of the applicants for some time. It is significant that they are deeply committed and child focused parents for this child. Mr Tietzel, the child’s biological father was not interviewed. He is currently in jail serving an eight month term. It is clear that the child’s biological mother has significant anger issues and violence issues as is set out in the report.
The concerns the Family Consultant observed of the applicants are that “they have had slightly more than equal care of the child, […], since he was about 10 or 12 months old until four months ago when he came into their full time care. They have therefore been very involved in raising him for over three years. They impressed as loving, capable and committed parents. They have given thought in a sensitive way to the provision of explanations to the child as to why he lives with them and not his biological parents.
They report being well supported by their extended families and friends. In particular they have a close friend who works in the child welfare field and who has provided advice and support to them. The applicants showed compassion and consideration of Ms Page and her situation and were able to clearly separate themselves from her difficulties and are aware that their responsibility is to the child and his needs now and in the future.
The Family Consultant went on to suggest arrangements needed to be put into place to enable the child to continue to know who his biological family are and know something about them. To the credit of both the applicants they have accepted and adopted that course.
The child has two siblings, S nearly 13 years of age and T five years of age.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The provisions in the Family Law Act 1975 (Cth) (“the Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
I have had regard to the principles set out in ss 60B, 60CC, 61DA, 61D(2)A and the other relevant sections.
The applicants have, for all intensive purposes, been the primary attachment figures for this child throughout most of his life. The child does not know his biological parents. He has not been in their care since he was ten months old. The biological parents have not sought to spend time with or even see the child since his care was relinquished to the applicants.
The applicants acknowledge that the child does not have a meaningful relationship with his parents and having regard to some of the material contained in the Family Report, there is a concern as to whether it would be in the child’s best interest to have a meaningful relationship with them and what risks that may impose upon this child.
To their credit, the applicants will endeavour and, I accept, will maintain contact with the biological family and ensure that this child knows who that family is so that as he grows and matures, he can make his own assessment in the years to come. It is clear that the child has not bonded with the mother nor vice versa, but the applicants and child have bonded with each other.
In their application and in their affidavit, the applicants say that there is not a risk of abuse of psychological harm to the child. I do not accept that evidence. It seems to me that the biological parents have engaged in a history of at least some degree of breaching the law. There is some evidence of violence and if a child is exposed to that violence, it is clear that the child could be at risk of emotional harm. So, it is a factor to which I have had regard.
The child is at an age where his express views ought not to be considered, however, it is clear that he is settled into this environment and he is loved and cared for in the environment. The child has a close and bonded relationship with both applicants and does not have a relationship with his biological parents. The applicants have made essentially all of the major decisions in relation to the child and continue to do so.
It is likely that the applicants will continue to promote a sensible and balanced relationship between the child and his biological parents provided it is safe to do so and done in a sensitive and thoughtful way. It is clear that the mother, at least, does not have the capacity to care for the child and that the biological father isn’t able to do so, bearing in mind that he is presently incarcerated and has shown no real interest in the child for the child’s life.
The orders that I will make are not likely to change the child’s circumstances, but will continue their separation from his biological parents and siblings, however, as I have said earlier the applicants will ensure that the child spends safe time with that family having regard to his age and maturity. The applicants have shown capacity to provide for the child in a child-focused way. The respondents have not done so.
It is asserted by the applicants that this is not a matter to which the provisions of section 60CC(h) should apply. I am satisfied that the applicants have shown a child-focused attitude to the responsibilities of parenthood. In terms of family violence, it is clear that the child has not been exposed to family violence, he has been shielded from that, however, bearing in mind the admissions by the mother, it is likely that if he were left in her unsupervised care, he may be exposed to violence.
These orders will enable the child to get on with his life and continue to be cared for in the safe and sensitive way which has occurred so far in his life. I will have regard to all of those factors since separation. This is not a matter where there ought to be equal shared parental responsibility having regard to the history of this child and the lack of a relationship between the child’s biological parents and the child. It is a case where there ought to be equal shared parental responsibility insofar as the applicants are concerned and I intend to make that order.
Having regard to all of those facts and circumstances, I make the orders, which I set out earlier on.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 July 2012.
Associate:
Date: 24 July 2012
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