Department intervenes – DFCS & Annissa & Anor

Department intervenes

 [2015] FamCA 1131 (4 December 2015)

Last Updated: 8 January 2016

FAMILY COURT OF AUSTRALIA

Children and Young Persons (Care and Protection) Act 1998 (NSW)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1131.html

16. Ultimately the question for determination is what parenting orders should be made in relation to the children and in that context whether the best interests of the children are indicative of orders being made for the Department to assume sole parental responsibility for the children and for the children’s relationships with their parents to be a matter for Departmental determination.
17. The Secretary of the Department has intervened in these proceedings under s 91B of the Family Law Act 1975 (Cth) (“the Act”). As such the Secretary is a party to these proceedings: s 91B(2).
18. The Department, of course, is a non-parent. Many of the considerations set out in the Act relate to parents. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
19. It is clear having regard to the circumstances of the children both historically and at present as referred to above that the Applicant Department is concerned with the care, welfare and development of the children.
20. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
21. Consideration of the Applicant as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional considerations 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the Applicant by way of application of s 60CC(3)(m).
22. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act).

23. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.
24. Finally, the Full Court in Yamada & Cain [2013] FamCAFC 64 said at [27]:

The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.