Harper and Ors and Cage

[2007] FamCA 1543

FAMILY COURT OF AUSTRALIA

HARPER AND ORS & CAGE [2007] FamCA 1543

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Where parenting plan has expired – Where no appearance by applicants – Where Orders nonetheless deemed necessary in the circumstances of the case – Orders issued

Family Law Act 1975 (Cth)

APPLICANTS: Mr Harper Snr & Mrs Harper and Mr Harper

RESPONDENT: Ms Cage

FILE NUMBER: BRC 10041 of 2007

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance for or on behalf of the Applicants

SOLICITOR FOR THE RESPONDENT: Ms Stewart, Solicitor of
DA Family Lawyers appeared for the Respondent Mother

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, T born … October 2001 and B born … April 2003 live with the Mother.

2. The Mother have sole long-term parental responsibility for the children.

3. The Paternal Grandparents and the Father spend time with the children at all such times as the parties may agree in writing but in the event the parties are unable to agree then:

   a.on alternate weekends from after school Friday (or 3.00 pm if a non-school day) to 4.00 pm Sunday;

   b.that the Father’s time with the children be supervised by the Paternal Grandparents, or either of them.

4. The Paternal Grandparents and the Father be at liberty to telephone the children between 7.00 pm and 7.30 pm each Wednesday with the Paternal Grandparents to initiate the telephone call to a telephone number provided by the Mother.

5. Subject to such other arrangements as the parties may mutually agree for the purpose of changeovers the Paternal Grandparents be responsible for collecting the children at commencement of spending time with the children from the Mother’s residence and return the children to the Mother’s residence at the conclusion or from such venue as may be designated from time to time by the Mother but in default from the school and/or day care centre.

6. The proceedings are adjourned to the Judicial duty list at 10.00 am on 25 February 2008 for the making of final Orders.

7. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Harper & Cage is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10041 of 2007

MR HARPER SNR & MRS HARPER AND MR HARPER

Applicants

And

MS CAGE  

Respondent

REASONS FOR JUDGMENT

1. I have some familiarity with the file.  The biological parents got together when they were 16 years of age.  There has been a history of drug abuse, a highly dysfunctional relationship, much to the detriment, I expect, of these two young children, T who was born in 2001 and B born in 2003.

2. Proceedings were instituted in this Court by way of an initiating application filed on 23 August this year and the paternal grandparents and the father - that is Mrs Harper, Mr Harper Snr and Mr Harper - were the applicants, the mother was the respondent in those proceedings.  Those orders sought that the two children effectively reside with the paternal grandparents.

3. I am informed, and I accept, that after departmental intervention dating back to last year the children have been placed in the mother's care.  There was a parenting plan.  I think there were some allegations as to whether the parenting plan was being strictly followed, but regardless of that issue, after the Department's parenting plan expired the parties entered into their own parenting plan for a period of time.  This involved the subject children residing with their mother and spending time with the paternal grandparents and their father effectively as agreed, but it was on alternate weekends.

4. On today's date the matter has been called on.  It was adjourned to this date by the Registrar on 30 November.

   RECORDED:  NOT TRANSCRIBED

5. Before Forbes JR back on 20 September this year there was legal representation for the father, the paternal grandfather appeared in person and Ms Young from the mother’s firm of solicitors appeared and the matter was adjourned to 16 November and since that time there has been no appearance. 

6. The applicants have been given the courtesy of a phone call and it appears that they are not interested in pursuing legal proceedings.  In a matter as volatile as this matter has been it is my view that there should be orders in place.

7. I am not minded to make final orders, because one view is that the orders that have been disclosed in the response document are not the same as the orders that are now being sought.  However, I have noted that the orders that are now being sought actually provide for the paternal grandparents and the father spending more time than in the orders sought in the response document relied on.

   ORDERS DELIVERED

8. I will bring it back before myself on 25 February.

9. Will you forward draft orders to my associate today, so those orders can issue, and will you also undertake to notify the paternal grandparents and the father in writing that these orders have been made today forwarding a copy of the orders and advising them that the matter is adjourned to 25 February and on that date final orders will be made in default of any appearance.

   RECORDED:  NOT TRANSCRIBED

10. 10 am on 25th.

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date:  14 December 2007