Maj and Orlic and Anor

[2015] FamCA 925

FAMILY COURT OF AUSTRALIA

MAJ & ORLIC AND ANOR [2015] FamCA 925

FAMILY LAW – CHILDREN – Best interests of the child – Where there are two children aged three and four – Where the Court is satisfied that the mother is aware of the proceedings and has failed to appear – Orders that the paternal grandmother be given leave for her application to be heard on an undefended basis – Where the grandmother has been closely involved with the children since birth – Where the father has not put himself forward as the primary carer of the children – Where it is in the best interests of the children for orders to be made that the paternal grandmother have sole parental responsibility for the children – Orders that the children live with the paternal grandmother – Orders that the grandmother be given leave for her application for final orders to be heard on an undefended basis

APPLICANT: Ms Maj

1st RESPONDENT: Mr Orlic

2nd RESPONDENT: Ms Orlic

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 7057 of 2014

DATE DELIVERED: 17 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 17 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

FOR THE 1ST RESPONDENT: Mr Orlic in person

SOLICITOR FOR THE 2ND RESPONDENT: Ms Wimalaratne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tin

Orders

1. That the Court notes that the father undertakes to the Court that he will not consume any illicit substances at any time during which he is spending time with the children and for 24 hours prior thereto.

2. That the paternal grandmother is given leave for her application for final orders to be heard on an undefended basis.

3. That the Court notes the Court is satisfied that the mother is aware that these proceedings are before the Court today yet she has failed to attend Court.

4. That orders are made in accordance with paragraphs 1, 2 and 3 of the final orders sought in the Amended Response to Initiating Application filed on 12 August 2015 as set out hereunder:

   1.That the Second Respondent paternal grandmother have sole parental responsibility of the children B born on … 2010 and C born on … 2011.

   2.That the children live with the paternal grandmother.

   3.That the mother and father spend time with the children as agreed between the parties.

5. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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 to the engrossed orders] and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maj & Orlic and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7057 of 2014

Ms Maj

Applicant

And

Mr Orlic

1^st Respondent

And

Ms Orlic

2^nd Respondent

REASONS FOR JUDGMENT

1. These are undefended parenting proceedings brought by Ms Orlic to whom, for convenience, I shall refer as the paternal grandmother, in relation to two of her grandchildren, B, born in 2010 and C, born in 2011.  On my calculation, the granddaughter is about four and a half years of age, the grandson is about three and a half years of age and grandmother is 56 years of age.  She lives with her husband, Mr D Orlic at Suburb E, New South Wales.

2. The children’s mother is Ms Maj.  I am satisfied that the mother is aware that these proceedings are before the Court and that she is on notice that the grandmother will be seeking orders on an undefended basis if the mother does not appear at Court.  The mother has failed to appear at Court and in those circumstances I order that the applicant grandmother have leave for her application to be heard as an undefended proceedings.

3. The children’s father is Mr Orlic and he was in a relationship with the children’s mother from about April 2009 until about September 2012.  In fact, the father and the mother lived next door to the grandmother and her husband.

4. The grandmother has been closely involved in the care and upbringing of the two children since their births.  She helped the mother every day as the mother was unable to cope with the children without assistance.

5. The father had a business but this business ran into financial difficulty and the bank repossessed his home.  The father was charged with cultivating marijuana and that matter has been dealt with by the courts.  The father received a two year bond in respect of that offence.

6. When the father’s home was repossessed, he and the mother came to live with the grandmother and her husband.  The grandmother says the mother has a child who is about seven years of age whom she understands was removed from the mother’s care by the Department of Families and Community Services.

7. I note that the grandmother has taken the children for their medical appointments.  The grandmother alleges that the mother uses drugs and has mental health issues.  The grandmother would be prepared to offer the mother time with the children on the basis that that time would be supervised by her or by her husband.

8. The grandmother says that the only time that the mother has spent with the children since orders were made in December 2014 was the weekend following the making of those orders and also for about half an hour on 7 March 2015.

9. There are some specific allegations made which it is unnecessary to refer to.  I do not propose to go through the statutory requirements because the reality about this case is that the father is not putting himself forward as the primary parent for the children or the resident parent for the children.  The mother has not been able to interest herself in the proceedings to the point where she has actually come along to court.

10. So in those circumstances the grandmother is the only person who is putting herself forward to take the parental responsibility for the children and the primary care of the children.  In circumstances where the children have been closely involved with her over the entirety of their lives, where the evidence is to the effect that the mother has not been able to cope with the children and where the grandmother suggested to the Court that in the event that she does not take on this responsibility, then the inevitable consequence would be that the Department of Family and Community Services would come in and place the children into foster care, in my view the best interests of the children require that orders be made as sought by the paternal grandmother.

11. I note that Ms Tin for the independent children's lawyer also supports the grandmother’s application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 August 2015

Associate:     

Date:              28 October 2015