Brealey & Morten and Anor

In the Family Court of Australia, Justice Dawe considered an application by the maternal grandmother, Ms Brealey, for interim orders concerning the care of two children, T and E. The dispute arose after the children had been in the full-time care of Ms Brealey since November 2008, following the mother's inability to provide appropriate care. The father had subsequently taken the two younger children to live with him in New South Wales in February 2009, despite the children having had little contact with him. The mother supported the children remaining in the maternal grandmother's care.

The court was required to determine the best interests of the children, T and E, in circumstances where their eldest sibling was under the guardianship of the Minister for Family Services and placed with the maternal grandmother. Key issues included whether the children should be returned to South Australia to reside with the maternal grandmother, and whether an injunction should be granted to restrain the maternal grandmother from permitting the children to spend time with their mother except under specific conditions. The court also considered an application to transfer the proceedings to the Parramatta Registry.

Justice Dawe reasoned that the children's welfare favoured their return to South Australia to live with the maternal grandmother, taking into account the s 60CC factors. The court found that the children had been in the maternal grandmother's care for a significant period and that this arrangement was in their best interests. Consequently, the court ordered the father to hand over the children to the maternal grandmother on 17 April 2009, and that they reside with her in South Australia during the adjournment. An injunction was granted restraining the maternal grandmother from permitting the children to spend time with their mother other than in a public place and in her presence. The application to transfer the proceedings to the Parramatta Registry was refused, as the court had ordered the children's return to South Australia.