Oak and Oak

[2008] FamCA 878

FAMILY COURT OF AUSTRALIA

OAK & OAK [2008] FamCA 878

FAMILY LAW – CHILDREN – With whom a child lives – Child to live with paternal grandmother

APPLICANT: Mrs Oak

RESPONDENT: Mr Oak

INDEPENDENT CHILDREN’S LAWYER: Ashley Malcolm Kent

FILE NUMBER: ADF 1546 of 2006

DATE DELIVERED: 17 OCTOBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 17 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TUCKER

SOLICITOR FOR THE APPLICANT: BARTEL & HALL

COUNSEL FOR THE RESPONDENT: MR REYNOLDS

SOLICITOR FOR THE RESPONDENT: SRG LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR KENT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION

Orders

1. That the child … (“the child”) born … August 1996 live with the applicant maternal grandmother Mrs Oak and that she have sole parental responsibility for the child.

2. That the father Mr Oak spend such time with the child as is agreed between the parties.

3. That the appointment of the Independent Children’s Lawyer be discharged.

4. That all matters be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1546  of 2006

MRS OAK

Applicant

And

MR OAK

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Application of the maternal grandmother of the child born in August 1996, that Application having been filed on 30 October 2006.  In that Application, she seeks Orders that the child live with her and that she have sole parental responsibility for the child.

2. The maternal grandmother’s application was born of somewhat tragic circumstances in that the child’s mother died in January 2006.  The maternal grandmother also filed an Affidavit in support of her Application on 30 October 2006. 

3. The child’s father participated in these proceedings for some period of time but has neither provided his legal representative with instructions, appeared in Court in these proceedings nor had any contact with the child for some months now.

4. The Court has been greatly assisted by a Family Assessment report prepared by Dr M which is dated 29 July 2008 and annexed to the Affidavit of the Independent Children’s Lawyer filed on 30 July 2008.  The maternal grandmother has discharged her voluntary responsibility to the child in an exceptional way and she receives warm endorsement from Dr M in his report.

5. What is clear from that report is that the child loves living with his grandmother, feels very secure, safe and happy there and expressed a very clear desire to Dr M that he remain living in that environment and with his maternal grandmother.  The child expressed some concerns about spending time with his father and I note that this morning all that is being urged upon me is that I make an Order that the child spend time with his father as may be agreed between the parties.  Clearly, given the strength of feeling expressed by the child in relation to those arrangements, his wishes would be taken into account when and if any such arrangements are made.

6. I have reviewed all of the provisions of the Family Law Act which are relevant to these proceedings and in particular Section 60CA which requires me to consider the child’s best interests as the paramount consideration. In making that determination I am guided to the provisions of Section 60CC which sets out primary considerations and additional considerations. I will not bother to relate each of them in turn given the fact that the child’s mother is deceased and the father is now quite apparently taking no part in these proceedings nor, as a consequence, in the child’s life. It would seem unnecessary for me to review all of the individual provisions.

7. However, I have considered them all and having considered them all, and the facts relevant to each of those sub-sections, it is quite clear that the child’s best interests would be served by the Orders that are being sought by the maternal grandmother.

8. I am satisfied that it is appropriate to proceed to make the final Orders today as the father has had ample opportunity to participate fully in the proceedings and for some reason or other known only to him, has declined to do so.  I also note that the final Orders as being sought by the maternal grandmother enjoy the support of the Independent Children’s Lawyer.

I certify that the preceding eight (8) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: