Re De Luca

[2009] FamCA 536

FAMILY COURT OF AUSTRALIA

RE DE LUCA [2009] FamCA 536

FAMILY LAW – CHILDREN – With whom a child should live – where both parents are deceased – application unopposed – best interests of children to live with paternal grandparents – s 65L order made for family consultant to supervise compliance with orders for the purpose of facilitating future discussions between paternal grandparents and maternal grandparents

Family Law Act 1975 (Cth)

APPLICANT: Mr and Mrs De Luca

FILE NUMBER: MLC 602 of 2009

DATE DELIVERED: 2 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Mr D. Crabtree

Donald S Lampe Solicitors

Orders

1. That the applicant paternal grandparents have equal shared parental responsibility for the children S born … October 1999 and D born May 1997.

2. That the children live with the applicant paternal grandparents.

3. That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the applicants with the parenting order made on 2 March 2009 (“the Order”) and to render to either of them such assistance as is reasonably requested by him/her in relation to discussions with the children’s maternal family and compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of two (2) years and to be reportable.  However no report be prepared unless a further application in relation to the children is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.

   AND IT IS NOTED that Mr K, Family Consultant, has seen the family today and reported to the Court as part of the Child Responsive Program.

   IT IS FURTHER ORDERED:

4. That the evidence of Mr K, Family Consultant, given this day be transcribed and when transcribed a copy be placed on the Court file and made available to the applicants.

5. That the reasons for judgment this day be transcribed and that copies be made available to the applicants.

6. That the solicitor for the applicant paternal grandparents serve a sealed copy of this order on:-

   a)     Mr WC, [address], Victoria;

   b)Ms LD, [address], Victoria;

   c)Ms YC, [address], Victoria;

   d)Mr & Mrs OC, [address], New South Wales; and

   e)Ms PC, [address], Victoria,

   by prepaid post.

7. That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 602 of 2009

MR AND MRS DE LUCA

Applicant

REASONS FOR JUDGMENT

(ex tempore)

1. The applicant paternal grandparents, Mr and Mrs De Luca, of C in Victoria, seek equal shared parental responsibility and residence of their grandchildren, S born in October 1999 and D born in May 1997. 

2. The application is brought following a tragic motor vehicle accident which led to the death of the children's father, their son, in November 2008 and the children’s mother one day later November 2008. 

3. Since the accident the children have resided in the care of the paternal grandparents. Prior to the tragedy, the grandparents had lived for some time in a house in close proximity, if not over the road, from the children's home with their parents.  The children have continued to reside with the grandparents in their home but have also had the run of their former home. 

4. The matter came before me on 9 February 2009 in the duty list.  I was concerned at that time to minimise the pressures for the family associated with ongoing court proceedings but I was also concerned not to make final orders without giving person from the maternal side of the children's family an opportunity to be heard or to enter into some dialogue with the applicants before final orders were made.  I made certain directions on 9 February 2009, including that the applicant grandparents be assessed by a family consultant and that an invitation be issued to some members of the maternal family.

5. I ordered that there be an assessment conference with Mr K, family consultant, on 2 March 2009.

6. I received a facsimile copy of an affidavit sworn by Raymond Robinson, lawyer for the applicants, on 2 March 2009, in which he deposed that five members of the maternal family were sent a letter inviting them to attend a conference with Mr K, family consultant, this morning, providing Mr K’s telephone number and advising that the further date for hearing would be 18 March 2009, unless on 2 March 2009 all matters were resolved or were not opposed, in which case orders would be made on this day.  That is what has occurred.

7. I have had the benefit of hearing from Mr K.  He has had some discussions with one member of the maternal family, who confirmed that she did indeed receive the letter from the applicants' solicitors. 

8. Mr K gives a well‑reasoned account of the applicant paternal grandparents and of the children.  It appears that everything in that household is as fine as it could be, given the tragic death of these young parents. 

9. I am satisfied that the orders that I have made in relation to the children being in the care of the applicant paternal grandparents is entirely consistent with their best interests.  The children are blessed to have such grandparents. 

10. I have ordered also a period of supervised counselling.  That is somewhat of a misnomer, but what it does is make available a family consultant, hopefully Mr K or, if not him then someone else, to see the parties or other interested persons in the event that they want to have some discussions about the children or that there is a dispute.  I envisage that this mechanism could be used for there to be some negotiation of any dispute which could arise between the two sides of the family without an application having to be filed in the court.  That is my purpose in ordering it.

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

Associate: 

Date: