Brack & Anor and Brack & Anor

[2012] FamCA 630

FAMILY COURT OF AUSTRALIA

BRACK AND ANOR & BRACK AND ANOR [2012] FamCA 630

FAMILY LAW –  PRACTICE AND PROCEDURE – application seeking that final orders be made on an undefended basis in respect of the father – where there are proposed minutes of consent between the applicant maternal grandparents and the mother – where the Court was satisfied that the father had been given notice of the proposed orders – where the Court was satisfied that that the father knew of the risk of orders being made in his absence – where the Court was satisfied that the father had been accorded with procedural fairness – where the Court held that it was appropriate for the matter to proceed without the father’s participation.

FAMILY LAW – CHILDREN – final consent orders – consideration of the appropriateness of the proposed minutes of consent – where the Court was satisfied that the proposed orders represent the best interests of the children – consent orders made in terms of the proposed minutes. 

Family Law Act 1975 (Cth)

APPLICANT MATERNAL GRANDPARENTS: Ms B Brack and Mr T

RESPONDENT: Ms M Brack

2^nd RESPONDENT: Mr B

INDEPENDENT CHILDREN’S LAWYER: Mr Barr

FILE NUMBER: ADC 4809 of 2010

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT MATERNAL GRANDPARENTS: Mr White

SOLICITOR FOR THE APPLICANT MATERNAL GRANDPARENTS: White Berman

COUNSEL FOR THE RESPONDENT: Ms Tucker

SOLICITOR FOR THE RESPONDENT: C M Tucker & Associates

COUNSEL FOR THE 2^ND RESPONDENT: N/A

SOLICITOR FOR THE 2^ND RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Barr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Barr Lawyers

Orders

1. By consent I make orders in terms of the minutes this day signed by me.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brack and Anor & Brack 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 ADELAIDE

FILE NUMBER: ADC 4809 of 2010

Ms B Brack and Mr T

Applicant Maternal Grandparents

And

Ms M Brack

Respondent

And

Mr B

2^nd Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. As Counsel have heard, I have raised concerns about the unusual nature of the Application in a Case and its timing.  The Application in a Case filed on 30 May 2012 seeks final orders to be made on an undefended basis to the extent that it is a consent order between the applicant maternal grandparents and the mother.  It has been made on an undefended basis only so far as the second respondent, Mr B, is concerned. 

2. The final orders proposed concern the infant children, Y, who was born in December 2007, and D, who was born in June 2009.  The second respondent, Mr B, is the father of the young child, D.  The proceedings before the Federal Magistrates Court initially and this Court have been outstanding for a number of years.  The matter has been the subject of numerous interim applications and orders and was recently referred to the Registrar for placing it in the queue for listing of a trial for determining the matters on a final basis with an estimate that the matter would take seven days.

3. The Application in a Case is supported by an Affidavit filed by the maternal grandmother and an Affidavit of the solicitor received by me this morning which sets out and annexes correspondence between the solicitors and the father, who has been unrepresented since the filing of a Notice of Ceasing to Act by his solicitors in January of this year.  Since then, the father has not filed any address for service, but it is clear that correspondence has taken place between the solicitors for the applicants and the father by post and by email. 

4. In particular, I am told from the bar table, and accept, that the father was served with this Application in a Case and the supporting Affidavit of the maternal grandmother on 7 June 2012.  He has not responded to that Application by filing any response or any affidavit, nor indeed has he filed any material, nor has there been any appearance by him today, nor any application for him to attend via telephone link should he have so chosen from his home, which I understand is in Tasmania. 

5. Although I pressed Counsel for submissions in relation to the need to provide the father with procedural fairness, I am satisfied on the affidavit material before me that the father is clearly under notice of the orders being sought by the maternal grandmother to which the Independent Children’s Lawyer and the mother consent.  I am also satisfied that the father was aware that there was a clear risk that if he filed no response and did not attend today, that final orders would be made in his absence.  In particular, I refer to the annexures to the Affidavit of the maternal grandmother and the annexures to the Affidavit of the maternal grandmother’s solicitors, which clearly refer to the desire by the other parties to resolve the matter without the unnecessary delay and cost of an extended trial in this jurisdiction. 

6. In particular, the email from the father to the applicant’s solicitors, which is dated 8 May 2012, is a response by the father to the letter from the applicant’s solicitors to Mr B of 1 May 2012.  They had previously provided the proposed consent orders to the father.  His reply indicates:

   I am prepared to agree to most of the amendments.  There are some things that I also require.  I want to begin having [D] overnight whilst I am in Adelaide.  I also wish to take [D] to visit his great-grandmother in Newcastle.

   And the letter continues with comments in relation to that matter.  He asks them to:

   Please consider these reasonable requests carefully.  I don’t ask for much.

   The response from the solicitors indicates that the mother is prepared to consider overnight time in due course after the father has regularly taken the time in accordance with the existing orders and would give appropriate consideration to the child travelling to visit the family relative in Newcastle once suitable arrangements are made and agreed. 

7. I am therefore satisfied that the father has only a limited opposition to the orders which are proposed to be made and which are agreed by the mother and the Independent Children’s Lawyer. 

8. The other issue I raised was the question of this order being made on the basis that it would not prevent the father in due course, and after an appropriate change in circumstances (such as his continued frequent use of the orders providing him to have time spent with D over a period of time and the increased age of D) that he would not be prohibited from making further application to this Court for extended time to D in due course.  He would not be prevented by the principles of Rice v Asplund.

9. The Court considers that the orders are in the best interests of the children.  In relation to the child Y, the arrangements have been such that the child has been in the care of the maternal grandparents for a considerable part of his life and taking into account the significant issues in relation to providing for his appropriate care, I am satisfied that there are no issues which would prevent me from making a finding that it is in Y’s best interests that these orders be made.

10. In relation to the child D, I have also taken into account the most recent Family Report dated 20 October 2011, which considered all of the significant issues raised by the parties and in particular, that this matter was designated as a Magellan matter to address allegations made in relation to abuse of the child.  As is obvious to parties in Court this morning, my voice is such that it is not advisable for me to read out aloud those sections of the Family Report which are significant, but in particular, I refer to pages 22 through to page 25 of Dr Q’s report.  There have been, of course, significant matters since that time which also impact upon what is in the best interests of the children.  The most significant of those is the time that the father has failed to avail himself of spending time with D in accordance with the existing interim orders. 

11. The orders which are proposed, therefore, I am satisfied, are in the best interests of both Y and D with the amendments that have been made.  The orders provide for the discharge of the Independent Children’s Lawyer and for the applications to be removed from the active cases list. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 July 2012.

Associate: 

Date:  3 August 2012