McMillan and Anor and McMillan and Anor

[2007] FamCA 1217

FAMILY COURT OF AUSTRALIA

MCMILLAN and ANOR & MCMILLAN and ANOR			[2007] FamCA 1217
FAMILY LAW – CHILDREN – urgent interim parenting orders – order for publication
Family Law Act 1975 (Cth)
APPLICANTS:	Mr McMillan & Mrs McMillan
FIRST RESPONDENT: SECOND RESPONDENT:	Ms McMillan Mr Bradley
FILE NUMBER:	LNC	589		of	2007
DATE DELIVERED:	2 October 2007
PLACE DELIVERED:	Hobart
JUDGMENT OF:	Rose J
HEARING DATE:	2 October 2007
REPRESENTATION
COUNSEL FOR THE APPLICANTS:	Mr McGuire
SOLICITOR FOR THE APPLICANTS:	Smith & Glover, Lawyers
RESPONDENTS:	No appearance

ORDERS

1. That orders are made in terms of paragraphs 2, 3, 4, 5 and 6 of the Initiating Application filed 13 September 2007:

   “2.That the said child live with the applicants.

   3.That the said child spend time with and communicate with the respondent mother as agreed between the parties or as ordered by the Honourable Court.

   4.That until further order the said child spend time with and communicate with the respondent mother as agreed between the parties.

   5.That the requirement for service of this application on the respondent be dispensed with.

   6.That the mother or any person on her behalf be restrained from removing the said child from the [M] School precincts and from the [M] School without the express written consent of the application [sic] grandparents or an order of the Court.”

2. That a sealed copy of the Orders made this day may be published by service by the solicitors for the applicants upon the Principal of the M College at B and the Officer in Charge, Tasmanian Police Force at B.

1. That the proceedings be listed in the Judicial Duty List at Launceston on 6 November 2007.

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

FAMILY COURT OF AUSTRALIA AT HOBART

File number:  LNC589 of 2007

MR & MRS MCMILLAN

Applicants

And

MS MCMILLAN

First Respondent

And

MR BRADLEY
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, urgent orders are sought on an ex parte basis by the maternal grandparents in accordance with their Initiating Application filed 13 September 2007.

2. The orders sought are parenting orders in relation to their grandchild, born in February 1993 (“the child”).

3. The matter proceeded before me today on an ex parte basis notwithstanding that I was informed by counsel for the maternal grandparents that the mother had been served with a copy of the application and affidavits relied upon by the maternal grandparents.

4. There was no appearance by or on behalf of the mother.

5. An affidavit of service was not available to be filed in Court. However, I accept counsel's instructions that service had been effected.

6. I have read the Affidavits of the maternal grandparents sworn 12 September 2007 as well as the Affidavit of Rodney Charles Glover sworn 13 September 2007 in relation to the non-filing of the family dispute resolution certificate.

7. I am satisfied that in the circumstances the matter should proceed due to the urgent circumstances set forth in the affidavits.

Historical background

1. The child has lived with the maternal grandparents since November 2006.

2. The brief background to this matter is that the mother unfortunately appears to be suffering a significant disability due to an acquired brain injury and may also have physical disabilities.

3. During the course of the maternal grandparents caring for the child on a daily basis, the child was recently removed by the mother from the school she has been attending.

4. That removal was without the consent or prior knowledge or notice to the maternal grandparents.

5. It required some persistence from the authorities for the child to be returned to the care of the maternal grandparents.

6. I am satisfied that it is both urgent and desirable in the best interests of the child that orders be made on an ex parte basis returnable in the Court's duty list at the Launceston Registry on 6 November 2007.

7. It was submitted by counsel that was the appropriate place for the matter to be re-listed given its proximity to the residence of the maternal grandparents.

8. Having regard to the affidavits of the maternal grandparents it appears that they have provided appropriate facilities and care of the child and inferentially there is a view expressed by the child of desiring to return to live in their care.

9. In those circumstances, I am satisfied that it is in the best interests of the child to make the orders which will be made today. 

10. It is of course desirable in the child's best interests that there be a publication order so that a sealed copy of these orders may be provided to the principal of the school attended by the child as well as to the officer in charge of the B police station. Consequently those orders will also be made.

11. I will further direct that a sealed copy of the orders made this day be served upon the mother as soon as possible prior to 6 November 2007.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated:  12 October 2007