Bates and Bates and Ors (No. 2)

[2009] FamCA 389

FAMILY COURT OF AUSTRALIA

BATES & BATES AND ORS (NO. 2) [2009] FamCA 389

FAMILY LAW – CHILDREN – interim proceedings – best interests of the child – where the child lives with his sister – where there are issues concerning the health of both the mother and the grandfather and their capacity to participate in the proceedings and to spend time with the child – orders made as recommended in expert’s report

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT FATHER: Mr Bates

RESPONDENT MOTHER: Ms Bates

RESPONDENT GRANDPARENTS:	Mr and Mrs Ramsey
RESPONDENT OTHER PARTY	Ms Lowe

INDEPENDENT CHILDREN’S LAWYER: Ms C.A. Nelson

FILE NUMBER: ADF 5163 of 1998

DATE DELIVERED: 12 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 May 2009

REPRESENTATION

COUNSEL FOR THE RESPONDENT MOTHER: N/A

SOLICITOR FOR THE RESPONDENT MOTHER:	N/A
COUNSEL FOR THE RESPONDENT GRANDPARENTS:	N/A

SOLICITOR FOR THE RESPONDENT GRANDPARENTS:	N/A
COUNSEL FOR THE RESPONDENT OTHER PARTY:	N/A

SOLICITOR FOR THE RESPONDENT  OTHER PARTY: Self-Represented

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Awkar

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Nelson & Co

Orders

UPON NOTING the other party, Ms Lowe, will endeavour to make arrangements with the Contact Centre for the grandmother to spend time with the child approximately on a monthly basis.

IT IS ORDERED THAT

1. The trial date for the period commencing the 27 July 2009 for seven [7] days is vacated due to the inability of the mother and grandfather to attend today.

2. During the period of the adjournment the child … live with the other party, Ms Lowe, who will have the sole parental responsibility for the child’s welfare.

3. The order made on the 22 January 2009 which provided for the child to spend time with his mother and grandfather is suspended until further order.

4. The other party, Ms Lowe, authorise the school that the child attends to provide copies of all school reports, photographs and assessments in relation to the child when they are requested by the mother and grandparents.

5. The other party, Ms Lowe, to notify the mother and grandparents of any emergency concerning the child’s health as soon as practical.

6. Further consideration of the matter is adjourned to the 27 July 2009 at 10.00 am before the Honourable Justice Dawe when the Court will give consideration to final orders.

7. If the mother and grandfather wish to continue these proceedings and seek orders from this Court concerning the child then they are ordered to provide to the Court by filing and serving on the Independent Children’s Lawyer and the other party, Ms Lowe, by 4.00 pm on the 20 July 2009 a detailed report from their medical practitioner and any specialist such as psychologist or treating psychiatrist giving full particulars of their health and their capacity to participate in a trial in these proceedings and provide care for or spend time with the child.

8. The mother and grandfather are on notice that if they fail to comply with this order or fail to attend the proceedings on the 27 July 2009 the Court may make final orders in their absence by default.

9. Leave is given to all parties to issue subpoenas in relation to the medical health of the mother, grandfather and grandmother.

10. The other party, Ms Lowe, has leave to file and serve an affidavit setting out the present circumstances provided that it is filed and served by 4.00 pm on the 20 July 2009.

AND UPON NOTING that both the Independent Children’s Lawyer and other party, Ms Lowe, are to provide the Court on the adjourned date with the orders they wish the Court to make by way of final orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 5163 of 1998

MR BATES

Applicant

And

MS BATES

Respondent

MR AND MRS RAMSEY

Respondents

MS LOWE
Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to the interim orders, I have considered the report of Mr D and the material annexed to the affidavit of the Independent Children’s Lawyer, Ms Nelson, filed on 11 May 2009, and have given careful consideration to the provisions of Part VII of the Family Law Act1975 (Cth) and particularly those that emphasise the need to have a meaningful relationship between a child and his parents and other persons of significance such as grandparents.

2. I take into account in particular section 60CC, directing the Court to consider those matters when determining the best interests of the child. In this case the Court is guided to a large extent by the expert report of Mr D in which he deals with the concerns for the child’s welfare and in particular his emotional and psychological welfare.

3. The child is currently in the care of his sister, who is a party to these proceedings.  She seeks orders in terms of the recommendations of Mr D.  It would appear to me that it is in the best interests of the child that those orders are made, including orders which suspend the visits previously ordered between the child and his mother and grandfather.

4. The Court has received information from the mother's doctor which is very brief, saying she is unwell and unable to attend.  I am told from the bar table that the mother has been admitted to the mental health section of the Royal Adelaide Hospital. 

5. Ms Lowe also raised issues concerning the health of the grandfather and those matters relate to both the mother's and the grandfather's capacity to participate in a further trial in these proceedings without being represented by case guardians, but also raised serious concerns about the mother's and grandfather's capacity to spend time with, and communicate with, or care for, the child. 

6. Weighing all of the factors up, I am satisfied that it is appropriate to make those orders, particularly on an interim basis whilst the question of the mother's health and grandfather's health is ascertained. 

7. I therefore propose to make the orders as recommended by Mr D. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe 

Associate: 

Date:  15 May 2009