Brack & Anor and Brack & Anor

The Family Court of Australia, constituted by Justice Dawe, considered an application by the maternal grandparents seeking final consent orders regarding their grandchildren, Y and D. The proposed orders were agreed between the applicant maternal grandparents and the mother, and were also supported by the Independent Children’s Lawyer. The application was made on an undefended basis concerning the father, the second respondent, who had not filed a response or appeared in court.

The primary legal issues before the Court were whether it was appropriate to make final orders on an undefended basis concerning the father, and whether the proposed consent orders were in the best interests of the children. The Court was required to determine if the father had been accorded procedural fairness, given his lack of participation in the proceedings.

Justice Dawe was satisfied that the father had received proper notice of the application and the proposed orders, and was aware of the risk of orders being made in his absence. The Court found that the father had engaged in correspondence regarding the proposed orders, indicating a limited opposition to certain aspects, but ultimately consenting to the overall resolution. The Court applied the principles of procedural fairness, concluding that the father had been given sufficient opportunity to participate. Furthermore, the Court considered the Family Report and the father's failure to avail himself of existing interim orders for time with D, concluding that the proposed orders, with amendments, were in the best interests of both children. The Court made orders in terms of the minutes of consent.