Cash and Graham and Anor

[2007] FamCA 226

FAMILY COURT OF AUSTRALIA

CASH & GRAHAM & ANOR [2007] FamCA 226

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time

APPLICANT: MS CASH

RESPONDENTS: MR GRAHAM and
MRS GRAHAM

FILE NUMBER: HBF 1302 of 1998

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Howroyd

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. THAT all extant orders in relation to the child born in November 1992 (“the child”) be vacated.

2. THAT the child live with the applicant mother.

3. THAT the child spend time with the respondent grandmother and respondent father as is agreed or otherwise ordered by this Court.

4. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS NOTED

5. THAT this is a matter to which the presumption under s61D(a) ought not apply bearing in mind the particular factual circumstances of this matter having regard to s61D(a)(4).

6. THAT the parental responsibility provided under s61C of the Family Law Act applies.

7. THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

   IT IS DIRECTED

8. THAT the applicant mother cause a copy of these orders to be served upon the respondents by ordinary pre-paid post within fourteen days from the date of these orders.

9. THAT the solicitor for the applicant file an affidavit of such service in relation to order 8 above.

10. THAT a transcript of the reasons for these orders be taken out and placed on the Court file.

    IT IS FURTHER ORDERED

11. THAT leave be given to the respondents to apply in respect of these orders for a further period of twenty eight days following service of these orders.

    IT IS CERTIFIED

12. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1302  of 1998

MRS CASH

Applicant

And

MR GRAHAM  AND MRS GRAHAM

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by the applicant, the mother on 17 July 2006 seeking orders in relation to her daughter, born in November  1992 who is now aged 14.

2. There is evidence of personal service of the application upon her paternal grandmother and there is evidence that the two respondents, who are the child's paternal grandmother and father have filed addresses for service in September 2006.

3. A direction was made on 20 November that the parties file addresses for service and a reply.  Those replies, as far as I can identify, have not been filed.  The matter came before the court on a number of occasions and I note a report from counselling after the parties attended confidential counselling that the parties had reached agreement with regard to living with, but not agreement with regard to spending time or communicating with.

4. The matter came before a registrar of this court on 17 January 2007 and was stood over to 7 February 2007.  On 7 February 2007 there was no appearance again by the respondents and it was adjourned to today for an undefended hearing.  I am told by Mr Howroyd and I accept that he notified both respondents of today's return date.  I am satisfied that the respondents are aware of the proceedings and have chosen, for whatever reason, not to participate.

5. In terms of the substantive matters, the child has been living with her mother since February 2006.  The mother resides with her partner, Mr B, at F, which I am told is a three bedroom home in which the child has her own bedroom.

6. The child has a twin brother who continues to live with his paternal grandmother, the respondent.  The mother also has a son, the child’s half brother, who lives with his father, Mr E, and the applicant says both of her sons are well settled and, "I see them both on alternate weekends and on other occasions."

7. She says that in 1998 she was not coping with the demands of her twins and then both twins, that is the child and her brother, went to live with their paternal grandmother where the brother still remains and where the child lived until February last year.

8. Since returning to live with the mother, the child has on the evidence before me, settled into school.  She is pursuing her interests in music.  She has a strapper's licence and, according to her mother, they are managing quite well.  She has regular contact with her twin brother and presumably, from the evidence, she has regular contact with her half brother.

9. Sadly she does not have significant contact with her paternal grandmother who cared for her over a significant period of time and I urged the mother to try and restore that contact in respect of a child who had spent so much time with her paternal grandmother.  She may well regret not spending some time with her in the coming years, bearing in mind the age of the grandmother.

10. I am satisfied, taking into account all of the factors under section 60CC(23), that it is appropriate to make the orders as sought in the amended application.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CASH & GRAHAM & ANOR