Peters and Peters and Anor

[2008] FamCA 1166

FAMILY COURT OF AUSTRALIA

PETERS & PETERS AND ANOR [2008] FamCA 1166

FAMILY LAW – CHILDREN –  With whom a child lives

APPLICANT: Mrs Peters

RESPONDENTS: Mr Peters and Ms Watson

FILE NUMBER: MLC 10464 of 2008

DATE DELIVERED: 19 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Berkovitch

SOLICITOR FOR THE APPLICANT: McDonald, Slater & Lay

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That as from 6 January 2009 all previous parenting orders made by the Federal Magistrates’ Court in relation to the children C born … July 2003 and J born … July 2003 including the orders made on 20 February 2006 shall be hereby discharged.

2. That as from 6 January 2009 the children shall live with the applicant paternal grandmother and that she shall have the sole responsibility for both the long term and day to day care, welfare and development of the children.

3. That the father and the mother’s time spent and communication with the children shall be reserved.

4. That any time the children spend and communicate with the father and/or the mother shall be supervised and as agreed with the applicant paternal grandmother.

5. That pursuant to s 65DA 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.

6. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

7. That the application of the paternal grandmother filed 14 November 2008 shall be otherwise dismissed.

8. That the matter shall be removed form the list of pending cases.

AND IT IS NOTED

1. That the Interim Protection Order (with conditions attached) made 7 October 2008 by the Melbourne Children's Court shall cease to have effect on 6 January 2009 and I note paragraph 13 of the Conditions, pursuant to which the paternal grandmother was obliged to make this application.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10464 of 2008

MRS PETERS

Applicant

And

MR PETERS AND MS WATSON

Respondents

REASONS FOR JUDGMENT

1. J and C are five‑year‑old twin boys.  The application before me today is brought by their paternal grandmother with whom they are currently living.  The boys are at the moment subject to a Children's Court interim protection order.  So long as that order is in place, this Court lacks jurisdiction to be involved with the children.  However, the protection order is due to expire on 6 January 2009.  I can see from the copy order attached to the paternal grandmother's application before me, that it was a condition of the children being placed with her that she use her best endeavours to make an application to have Family Court orders made in her favour.  Nothing in the Family Law Act precludes me from making an order to commence on 6 January, when the interim protection order ceases.

2. I am satisfied that it is appropriate to make the order.  The children have not been living with either parent for some time, and have lived with the paternal grandmother under the auspices of the Department of Human Services.  They have had a turbulent time.  There have been allegations of sexual abuse.  It seems that the children are now in a very stable setting, safely looked after and protected by a mature and loving grandmother.  Mrs Peters is aged 69, so she is a youngish grandmother too.  I accept her evidence that she has the energy and all the necessary resources to care well for the children.

3. In her affidavit she swears that she would protect the children and ensure that they not spend unsupervised time at this stage with either parent.  I am satisfied that it is in the children's best interests at this stage to have the stability, security and protection of living with their grandmother.  I am satisfied too that she will facilitate a relationship with the parents but within the bounds of what is safe for the children.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  19 December 2008