FATHERS SEEK ORDERS FOR THEIR RESPECTIVE CHILDREN TO LIVE WITH THEM; MATERNAL GRANDPARENTS OPPOSE THEIR APPLICATIONS
WELLS & ANOR & DELMONTE and VINCENT & WELLS & ANOR
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 2084
This involves two cases that arose from the tragic death of Ms. Wells, the mother of the children whose best interests are the subject matter in the case.
FACTS:
Ms. Wells (the mother) dies of a heart attack a month ago. She had three children by two different fathers - Mr. Delmonte (first partner) and Mr. Vincent (second partner). The first partner was the father of Y and Z. Z was diagnosed with an autism spectrum disorder. The second partner was the father of X.
These children lived together with their mother. The mother had the support of Mr. and Ms. Wells (maternal grandparents). At the time of the mother’s death, she and the children lived near the maternal grandparents.
The second partner brought the first case (Vincent & Wells & Wells) wherein he applied for Orders to have X live with him. In this application, he sought interim Orders that the maternal grandparents return X to him and for him to have sole parental responsibility for X. The second partner has equal shared parental responsibility and alternate weekends with X.
The second partner alleged that the maternal grandfather might sexually abuse X while living with the maternal grandparent based on historical allegations relating to the maternal grandfather sexually abusing X’s mother. The Counsel for the second partner urged the Court to decide since no decision today in effect is a decision and the welfare of children cannot wait for the collection of all evidence.
In the second case (Wells & Delmonte), an initiating application, a recovery order, was filed by the maternal grandparents seeking an Order against the first partner for him to return Z to them. The first partner has unknown court orders but limited actual contact with Z. It was after the mother’s funeral that the first partner spent time with Z and then took Z home with him. The maternal grandparents want Z to be returned to them so that the three children can continue to live together and so that Z and X can continue to go to their schools, noting that Z has been streamed appropriately with special support noting his disabilities.
ISSUE:
Whether or not the Court should grant the applications for Orders sought by the parties.
HELD:
The parties sought parenting Orders defined in Part VII, division 5 of the Act, section 64B, and the Court’s powers to make such Orders in section 65D. The paramount consideration is what are the best interests of these children are to protect the children from physical or psychological harm, or being subjected to, or exposed to, abuse, neglect or family violence, and to promote the benefits to children of having a meaningful relationship with both parents. [1] Additional consideration is that the interim parenting proceedings should be confined to a proper determination at a trial. [2]
The Court was satisfied that the maternal grandfather is not a risk to X. In terms of X spending time with the second partner, who had a significant history of drug abuse, the Court also found that X is not at risk with his father. However, it is not a question of the second partner being a risk in terms of intentionally hurting the child or even not being capable, but rather that this is a very great change to impose on a child who has just lost her mother.
On the other hand, the first partner wants to engage with Z. The Court did not find any evidence that he would intentionally hurt Z or would abuse him; however, in Z’s case, more evidence is required as children who have autism are very resistant to change.
The Court held that the best thing for the children would be for them to be together, living with the maternal grandparents. This will be achieved through Orders made for X to continue living with the maternal grandparents, and for Z to be returned to live with the maternal grandparents and his siblings so he can be returned to his school.
The Court also held that it is important for X’s connection with the second partner will not be interfered with. It found that the best way forward for X is that she continues to live with the maternal grandparents on the basis that they will facilitate the incremental increases in time with the second partner.
Finally, the Court found that it is in the best interest of Z to have a good relationship with the first partner, but the Court had yet to hear submissions about the time that should take place with the first partner.
[1] Section 60CC(2), Family Law Act 1975.
[2] Ibid, Section 60CC(3).
