Brealey and Morten and Anor (No 2)

[2009] FamCA 1188

FAMILY COURT OF AUSTRALIA

BREALEY & MORTEN AND ANOR (NO. 2) [2009] FamCA 1188

FAMILY LAW – CHILDREN – with whom a child lives – where the mother has recently passed away – where the father has not participated in the proceedings – where the presumption of equal shared parental responsibility does not apply – where the eldest child is under the care of the Minister and unable to be the subject of the proceedings – where the Court is satisfied the maternal grandmother has the capacity to provide for the two younger children – orders made in terms sought by the maternal grandmother

Family Law Act 1975 (Cth) s 60CC

APPLICANT MATERNAL GRANDMOTHER: Ms Brealey

RESPONDENT MOTHER:

Ms Fisher

[Deceased]

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 677 of 2009

DATE DELIVERED: 26 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT MATERNAL GRANDMOTHER: Mr Biesse

SOLICITOR FOR THE APPLICANT MATERNAL GRANDMOTHER: Belperio Clark

COUNSEL FOR THE RESPONDENT MOTHER: Ms Read

SOLICITOR FOR THE RESPONDENT MOTHER: Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms WEST

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. The children T born on … September 1995 and E born on … October 2000 (“the children”) live with the applicant maternal grandmother and that she have sole parental responsibility for the children.

2. The applicant maternal grandmother be authorised and is hereby authorised to do all things and sign all document as shall be required in order to provide for and care for the children including signing all documents required for the issuing of Australian Passports and the legal requirement for the father’s signature to be provided in relation to the applications for the passports be and is hereby dispensed with.

3. The children be permitted to travel outside of the Commonwealth of Australia for the purposes of a P&O cruise in the presence of their maternal grandmother.

4. The children T and E spend time with and communicate with the father upon such terms and conditions as shall be agreed with the grandmother.

5. The Independent Children’s Lawyer has permission to release the report of Family Consultant, Ms B, to the Crown Solicitors Office who have permission to release the same to Families SA.

6. The appointment of the Independent Children’s Lawyer is discharged twenty-eight [28] days from today.

7. All matters are removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Brealey & Morten & 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 677 of 2009

MS BREALEY

Applicant Maternal Grandmother

And

MS FISHER [Deceased]

Respondent Mother

EX-TEMPORE REASONS FOR JUDGMENT

1. I have made final orders and, it is therefore appropriate for me to make some remarks.  I have previously made remarks in relation to the orders which have been made by way of interim orders in relation to this family.  The most recent sad events in relation to the death of the mother are dealt with in the Children and Parent’s Issues Assessment Report which I have before me from Ms B.  The circumstances of this matter clearly make it inappropriate to refer to the sections in Part VII of the Family Law Act 1975 (Cth) which create a presumption that the parents of the children have equal shared parental responsibility. Therefore those provisions do not apply.

2. This is a matter where, however, section 60CC still applies is necessary to consider the involvement of the father and maintaining a meaningful relationship with him.

3. The history of this matter, however, as set out in the documents on file clearly indicate that until the involvement of the Families SA, the children had very little contact whatsoever with their father and were cared for primarily by the grandmother and the mother from time to time. 

4. The other significant factors in relation to the children’s welfare are therefore providing them with appropriate care and stability. The background to the matter is clearly set out in Ms B’s report. I am satisfied on the material contained therein that the grandmother has the capacity and the appropriate attitude to provide for the two younger children. The provisions of section 60CC indicate also that it is in the best interests of the children that the orders I have proposed be made today, bringing about an end to the proceedings in relation to the two younger children. I am satisfied that those orders are appropriate. I note that they are supported by the Independent Children’s Lawyer.

5. I have made comments in open Court about the Court’s concern about the Minister’s role in the arrangements made for the eldest child, S.  S is under the guardianship of the Minister and is therefore not able to be the subject of proceedings in this Court.  However, the matters mentioned in Ms B’s report have been referred to in open Court. 

6. Returning to the two younger children, I am satisfied that the orders are in the best interests of the children.  The father has not participated in the proceedings and I indicated on previous occasions that I would proceed with the matter in his absence if he did not attend.  He has not attended, nor has he filed any further material in accordance with the orders, notwithstanding that he has been sent Courtesy copies of the orders of the Court in the past. 

7. I therefore make the orders which are proposed in relation to sole parental responsibility and specific orders as sought by the maternal grandmother. 

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

Associate: 

Date:  4 December 2009