Anbrosia and Anor & Anbrosia and Anor

[2008] FamCA 789

FAMILY COURT OF AUSTRALIA

ANBROSIA AND ANOR & ANBROSIA AND ANOR [2008] FamCA 789

FAMILY LAW – CHILDREN – with whom a child should live – application by maternal grandparents – child has lived with maternal grandparents for most of her life – family assessment recommended parents pursue reunification with the child – recommendations not followed by parents – no contact by parents – due to lack of participation by parents unnecessary to canvass relevant factors pursuant to relevant sections of the Act – materials on the file and expert’s report indicate child’s best interests served by living with maternal grandparents.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

1st APPLICANT: Mrs Anbrosia (Snr)

2nd APPLICANT: Mr Anbrosia (Snr)

1st RESPONDENT: Ms Anbrosia

2nd RESPONDENT: Mr Leung

INDEPENDENT CHILDREN’S LAWYER: Robert Wayne Winter

FILE NUMBER: ADF 1710 of 2006

DATE DELIVERED: 10 September 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR  J

HEARING DATE: 10 September 2008

REPRESENTATION

SOLICITOR / COUNSEL FOR THE APPLICANTS:	Litigant
FOR THE RESPONDENTS:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Robert Wayne Winter
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. That the child … (“the child”) born … February 2004 live with the maternal grandparents Mr Anbrosia (Snr) and Mrs Anbrosia (Snr) and that as between themselves, they share sole parental responsibility for the child.

2. That the appointment of the Independent Children’s Lawyer be discharged.

3. That all matters be removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Anbrosia and Anor & Anbrosia and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1710  of 2006

MRS AND MR ANBROSIA (SNR)

Applicant maternal grandparents

And

MS ANBROSIA

Respondent mother

And

MR LEUNG
Respondent father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today the Application of the maternal grandparents Mr and Anbrosia (Snr) and Mrs Anbrosia (Snr) seeking final orders that their granddaughter (“the child”) born in February 2004 live with them.  That Application was originally filed some 18 months ago on 4 December 2006.

2. For a time the child’s parents participated in the proceedings before the Court, including participating in a Family Assessment prepared by Dr C dated 24 October 2007.

3. As the Affidavit of the maternal grandmother filed on 4 December 2006 indicates, the child has resided with her and her husband for effectively the entirety of her life.  That factual situation was recognised by Dr C in his Family Assessment and his recommendations at that time in relation to the child were to attempt to pursue a path of reunification of the child with her parents who reside in Queensland.  However, as indicated by the Independent Children’s Lawyer, the child’s parents did not take advantage of that opportunity nor abide those recommendations and have not sought to pursue such reunification with their daughter.

4. On 16 August 2008 Notices of Ceasing to Act were filed by the solicitors who had previously represented the child’s parents. Of recent times none of the Applicants, the Independent Children’s Lawyer nor the Court has heard from the parents and on 31 July 2008 Registrar Dore made Orders adjourning the proceedings before me for final hearing, the intention being that I would today make Final Orders if there had been no response and no further participation by the child’s parents.

5. During the hearing before Registrar Dore on 31 July 2008 an attempt was made to contact the parents by telephone but without success.  That has been my experience this morning.  The parents have been called and my Court Officer has attempted to contact the parents by telephone but on each occasion, the indication was by automatic response that the service was no longer connected.

6. I note too that the Independent Children’s Lawyer wrote to each of the child’s parents on 2 August 2008 advising them of today’s hearing and indicating that in the event that they did not attend or arrange legal representation or appear in any way, then final Orders were likely to be made.

7. There is more than ample material on the file to establish that the child’s best interests would be served by living with her maternal grandparents who have been dedicated to the child’s needs and upbringing for as I said earlier, almost the entirety of her life.  It is a great credit to them that they have stepped in to provide the child with every prospect of a full development in a secure and loving environment.

8. I have considered all of the other matters that I need consider pursuant to Section 60CC, Section 61DA and Section 65DAA of the Family Law Act 1975 as amended. However, given the lack of participation in these proceedings by the child’s parents I do not deem it necessary to canvass the relevant factors pursuant to those Sections in any detail at all. The materials on the Court file and in particular the report of Dr C indicate that there is simply no question that the child’s best interests are served by residing with her maternal grandparents and by being afforded final Orders that recognise that status.

9. Given the circumstances of the matter, and supported by the Independent Children’s Lawyer, I deem it appropriate also to make an order that sole parental responsibility vest in the maternal grandparents.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  10 September 2008