Brack & Anor and Brack & Anor (No 2)

[2011] FamCA 272

FAMILY COURT OF AUSTRALIA

BRACK AND ANOR & BRACK AND ANOR (NO 2) [2011] FamCA 272

FAMILY LAW - CHILDREN – interim orders – application by the maternal grandmother and her partner to have previous orders to spend time with the children continued – where the mother makes allegations of abuse against the grandmother’s partner – where the Department for Families and Communities have found the allegations to be unsubstantiated – where the children have previously spent time with the maternal grandmother and her partner – order that previous orders for time be continued.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

1st APPLICANT: Ms B Brack

2nd APPLICANT: Mr T

1st RESPONDENT: Ms M Brack

2nd RESPONDENT: Mr B

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 4809 of 2010

DATE DELIVERED: 12 April 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 April 2010

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms Cocks

SOLICITOR FOR THE 1ST APPLICANT: White Berman & Co

COUNSEL FOR THE 2ND APPLICANT: Ms Cocks

SOLICTOR FOR THE 2ND APPLICANT: White Berman & Co

COUNSEL FOR THE 1ST RESPONDENT: In person

SOLICITOR FOR THE 1ST RESPONDENT: n/a

COUNSEL FOR THE 2ND RESPONDENT: Mr Richards

SOLICITOR FOR THE 2ND RESPONDENT: Diane Myers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Barr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders

UPON NOTING that it is recommended the parties attend a Dispute Resolution Conference process and that there is one allocated to the Federal Magistrates Court proceedings (ADC3678 of 2009) for 1 June 2011.  It is strongly recommended (if possible) the maternal grandmother and her partner (Mr T) be included in that conference (but that is a separate matter depending upon the allocation of the Federal Magistrates Court proceedings to this Court).

1. The time is extended for the second respondent (Mr B) to file and serve any response and affidavit in support of the orders which he seeks to 4.00 pm on 9 May 2011.

1. Further consideration of the Initiating Application filed on 24 December 2010 and the Application in a Case filed on 28 March 2011 is adjourned to Friday 20 May 2011 at 9.15 am before the Honourable Justice Dawe.

1. If the mother proposes to participate in the proceedings that by 4.00 pm on 9 May 2011 she is to file and serve her response to the applicant maternal grandmother and her partner’s application and any affidavit setting out factual material upon which the mother seeks to rely.

1. During the period of the adjournment the children Y and D spend time with the applicant maternal grandmother and her partner (Mr T):

(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 grandmother 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 McDonalds Restaurant, Z Street, Adelaide Suburb 1 in the State of South Australia;

(b)each Wednesday from 9.00 am to 7.00 pm with the respondent mother to deliver the children to the applicant maternal grandmother and collect the children from the applicant maternal grandmother inside the McDonalds Restaurant, Z Street, Adelaide Suburb 1 in the State of South Australia.

1. The order in relation to the applicant maternal grandmother and her partner (Mr T) 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. During the period of the adjournment the mother is restrained and an injunction is granted restraining her from removing the permanent place of residence of the children Y and D from her current address at Unit …, … S Street, Adelaide Suburb 2, SA … and until such time as the mother files documents indicating her Address for Service with the Court leave is given to the solicitor to serve the mother with documents in these proceedings by sending them pre-paid post to Unit …, … S Street, Adelaide Suburb 2, SA … or PO Box …, Adelaide Suburb 3, SA … UPON NOTING that the sealed orders are to be forwarded to the mother at her post office box given in Court.

IT IS NOTED that publication of this judgment under the pseudonym Brack and Anor & Brack and Anor (No 2) 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

Applicants

And

Ms M Brack

Respondent Mother

And

Mr B
2^nd Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I now consider the orders which should be made during the period of the adjournment.  The maternal grandmother and her partner are seeking orders that the time spent, which was ordered on 8 March 2011, continue, save and except for the handover which was to take place at the police station is now proposed to take place at McDonald's, Z Street, Adelaide Suburb 1.  The maternal grandmother and her partner also seek that the recovery order, which is part of the application, also be made today to ensure that the time spent with the maternal grandmother and her partner is enforced.

2. Counsel for the father of the child D supports the orders which were made on 8 March 2011 securing his time with D be continued.  The Independent Children’s Lawyer supports the continuation during the period of the adjournment of the orders providing for the maternal grandmother and her partner to spend time with the children, but does not support the recovery order which is sought.

3. The mother proposes today that her mother spend time with the children, but does not support any order which would provide for the step-grandfather having time with the children, save and except that which is supervised.  From the bar table she raises allegations concerning the behaviour of her stepfather. 

4. These matters are referred to in considerable detail in the report of the Department for Families and Communities letter, which was before the Court addressed to Justice Burr, dated 4 February 2011 ordered when this matter was placed in the Magellan List.

5. The letter from the Department for Families and Communities refers to the allegations of abuse, and expresses concern about the mother's method of questioning the children concerning the allegations.  The report concludes that the Department will have no further current involvement, and that the allegations were not substantiated. 

6. This is only an interim hearing and the question of the proof of the allegations of all of the parties will need to be determined if the matter proceeds to trial in due course.

7. The material also has to be seen in light of the recent affidavits before the Court filed by the maternal grandmother and the stepfather, in which reference is made to the children spending time with the applicant grandmother and her husband over a period of time, including a period recently when the mother brought the children to the home of the maternal grandmother. 

8. The Court must consider the provisions of the Family Law Act and the authority of the matter of Goode & Goode (2006) FLC 93-286.

9. The primary considerations to be determined under section 60CC are to ensure that the children have a meaningful relationship with each of their parents and relevant persons and, significantly, that the children are protected from harm.

10. I have considered the report of the Department for Families and Communities and the affidavit material which is on file, together with the submissions of the mother from the bar table. 

11. Taking into account the inconsistencies in the behaviour of the mother when providing that the grandmother and her partner spend time with the children, in particular recently, I am satisfied, bearing in mind the findings of the Department for Families and Communities, that the children will be appropriately protected when spending time with the grandmother at her home.  I therefore propose to continue the orders of 8 March 2011 save and except for the handover which was previously to take place at the police station.

12. I do so on the basis that clearly it was from the grandmother's affidavit that the Court was first made aware of the allegations being made by the mother.  These matters have been brought to the attention of the Court clearly even though the mother has yet to file any answering documents.

13. I made the order that the mother file her answering documents by 9 May.  I have also been asked to consider transferring these matters to the Federal Magistrates Court. 

14. Counsel for the maternal grandmother and her partner, the father, and Independent Children’s Lawyer, are aware that there are proceedings before the Federal Magistrates Court concerning the child D.  However considering the allegations made by the mother and the report of the Department for Families and Communities I am not satisfied that it is appropriate to transfer these proceedings to the Federal Magistrates Court, but will await the determination of the Federal Magistrates Court in relation to the possible transfer of the proceedings in that Court to this Court to join with the proceedings which are currently before this Court.

15. During the period of the adjournment the mother is restrained from moving the permanent place of residence of the children from her current address at Unit …, … S Street, Adelaide Suburb 2, SA, …, and until such time as the mother files documents indicating her address for service I give leave to the other parties to serve her with documents in these proceedings by sending them by prepaid post to Unit …, … S Street, Adelaide Suburb 2, SA, ….

16. I will have it noted that the sealed orders are to be forwarded to the mother care of her post office box just given in Court. 

17. I have already indicated to the mother that she should obtain independent legal advice as soon as possible in relation to the matters, and to have the documents filed and served within the ordered time. 

18. I will note that it is recommended that the parties attend a dispute resolution conference and that there is one allocated to the Federal Magistrates Court proceedings for 8 June 2011.  I would strongly recommend that if possible the maternal grandmother and her partner be included in that conference, but that is a separate matter depending upon the allocation of the Federal Magistrates Court proceedings to this Court.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 April 2011.

Associate: 

Date:  21 April 2011