Brack & Anor and Brack & Anor

[2011] FamCA 182

FAMILY COURT OF AUSTRALIA

BRACK AND ANOR & BRACK AND ANOR [2011] FamCA 182

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – application by the maternal grandparents to spend time with the children – where the hearing proceeded in the absence of the mother as the Court was satisfied that proper notice had been given – best interests – orders that the children spend regular time with the maternal grandparents

Family Law Act 1975 (Cth) s 60CC

APPLICANT MATERNAL GRANDPARENTS: Ms B Brack and Mr T

1st RESPONDENT: Ms M Brack

2nd RESPONDENT: Mr B

FILE NUMBER: ADC 4809 of 2010

DATE DELIVERED: 8 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 8 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT MATERNAL GRANDPARENTS: Ms Cocks

SOLICITOR FOR THE MATERNAL GRANDPARENTS: White Berman

COUNSEL FOR THE 1ST RESPONDENT: N/A

SOLICITOR FOR THE 1ST RESPONDENT: In Person

COUNSEL FOR THE 2ND RESPONDENT: Mr Richards

SOLICITOR FOR THE 2ND RESPONDENT: Diane Myers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders

1. This matter is adjourned to Tuesday 12 April 2011 at 9.15 am before the Honourable Justice Dawe.

1. Any response to be filed by the respondents and affidavit in support of orders which they seek are to be filed and served by 4.00 pm on 5 April 2011.

1. During the period of the adjournment the children Y and D spend time with the applicant maternal grandparents:

(a)each week from 4.30 pm on Fridays until 7.00 pm on Sundays with the mother to ensure that the children attend at the C Child Care Centre and the applicant maternal grandparents to collect the children from the C Child Care Centre at 4.30 pm on Fridays and return the children to the respondent mother at 7.00 pm on Sundays inside the S Police Station;

(b)each Wednesday from 9.00 am to 7.00 pm with the respondent mother to deliver the children to the applicant maternal grandparents and collect the children from the applicant maternal grandparents inside the S Police Station.

1. The order in relation to the applicant maternal grandparents spending time with the child D is suspended on any weekend that the second respondent (Mr B) spends time with D pursuant to the orders of the Federal Magistrates Court made on 3 December 2010.

1. The applicant maternal grandparents are to arrange for the mother to be personally served with a sealed copy of this order as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Brack and Anor and Brack 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: ADC 4809 of 2010

Ms B BRACK and Mr T

Applicant Maternal Grandparents

And

Ms M BRACK

Respondent Mother

And

Mr B
2^nd Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I proceeded to deal with the matter this morning notwithstanding the mother has failed to appear.  The initiating application and supporting material were served upon the mother as set out in the affidavit of service on file.  Although at the time the matter was served upon the mother, it was listed before Justice Burr, His Honour subsequently disqualified himself and by letter of 1 February 2011 sent to the represented parties’ solicitors and to the mother at her address at which she was served, informed the mother that the matter was to be heard by me this morning at 9.15 am.  She was specifically called this morning, and there was no appearance.  I proceeded to hear the matter in her absence.

2. I am satisfied that she had been given proper notice of the proceedings, the nature of the orders sought and the date of this hearing. 

3. Before me this morning, Ms Cocks appears for the applicants, Mr Richards for the second respondent (the father of D) and Mrs Tinning for the Independent Children’s Lawyer, such appointment being made by the Registrar’s order of 22 December 2010.

4. The Court also has before it the report from Families SA of 4 February 2011, a detailed report of some seven pages in which Families SA provide a summary of the history of the Department’s involvement with the family and indicate they have no current involvement at this time and are agreeable to the matter proceeding in the Family Court.

5. The Court is also aware that proceedings are currently on foot in the Federal Magistrates Court in relation to the child D.  Those proceedings have been adjourned in the Federal Magistrates Court to early July 2011.  There are currently orders in force in relation to the Federal Magistrates Court proceedings providing for the second respondent to spend time with D one weekend a month.

6. I am being asked this morning to make interim orders in terms of paragraph 9 of the interim orders sought in the initiating application, which provides that the applicants spend time with both children each weekend from 4.30 pm Friday until 7.00 pm Sunday and each Tuesday (or such other days the week when the applicants have time off from work, which is now, I am told, a Wednesday) from 9.00 am to 7.00 pm and for one half of the school holiday periods on a week-about basis and at such other times as may be agreed or ordered by the Court.

7. The history of the matter is set out in some detail in affidavits and in the Families SA report.  It is clear that notwithstanding that the children are young (Y was born in December 2007 and D was born in June 2009) they have experienced some considerable difficulties in their short lives.  The reports of Families SA and the affidavit of the applicants indicates that the applicant grandmother and her current partner have provided considerable support for the mother and, indeed, considerable support and assistance for the children in their short lives.

8. The provisions of the Family Law Act indicate that the primary considerations of the children are the protection of the children from harm and maintaining a meaningful relationship with each of the child’s parents. The ancillary provisions of section 60CC also emphasise ongoing relationship between the children and persons significant to them in their lives, such as grandparents.

9. In this matter, it is clear that the children, Y and D, have in the past enjoyed significant and ongoing relationships, and the benefit that those relationships have provided, with both of the applicants.  It is also possible to conclude that the time spent with the applicants would also provide the respondent mother with an opportunity to attend to other matters which would therefore increase the quality of her ongoing care of the children.

10. I have expressed concern in discussions about the relationship between the mother and the applicant grandmother and the effect that that may have upon the mother and, indirectly, her care of the children. However, I am satisfied, taking into account the history of the matter, that in all of the circumstances and taking into account all of the factors in Part VII of the Family Law Act, that it is in the best interests of the children to make an order during the period of the adjournment that the mother have time to herself on the weekends and that the children have the benefit of returning to a relationship with the applicants on a regular basis.

11. I note that Mr Richards is unable to provide either support, opposition or any direct comment in relation to the orders sought, but bearing in mind that the order in relation to D from the Federal Magistrates Court will take priority over any order that I now make in relation to the applicants, I am satisfied that it is just, equitable and in the children’s best interests to make that order in relation to D, notwithstanding the Federal Magistrates Court proceedings, clearly on the basis that the Federal Magistrates Court order will continue to apply. 

12. I propose to make the order in relation to weekends and Wednesdays during the period of the adjournment but will not make an order in relation to school holidays at this stage.  I understand the school holidays, in any event, do not commence until 18 April or thereabouts, which is a date after the adjourned date. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 8 March 2011.

Associate: 

Date:  16 March 2011