Turner and Turner and Anor

[2009] FamCA 1044

FAMILY COURT OF AUSTRALIA

TURNER & TURNER AND ANOR [2009] FamCA 1044

FAMILY LAW – CHILDREN - With whom a child lives - Applicant maternal grandmother and first respondent mother agree that the child should live with the mother and spend time with the maternal grandmother as agreed - There was no appearance by or on behalf of the second respondent father - The Court is satisfied that the father was aware of the Court date and has voluntarily absented himself from the proceedings - Orders made for the mother to have sole parental responsibility, for the child to live  with the mother and spend time with the maternal grandmother by agreement - No orders made as to the time the child should spend with the father

Family Law Act 1975 (Cth)

APPLICANT: Mrs Turner (Snr)

1st RESPONDENT: Ms Turner

2nd RESPONDENT: Mr Reece

FILE NUMBER: NCC 578 of 2009

DATE DELIVERED: 30 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 30 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Mr Winder, Winder Lawyers

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

Orders

WITH THE CONSENT OF THE APPLICANT AND FIRST RESPONDENT IT IS ORDERED THAT

1. All previous parenting orders concerning the child … born … March 2007 (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. The child shall spend time with the maternal grandmother as agreed between the maternal grandmother and the mother.

5. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 578  of 2009

MRS TURNER (SNR)

Applicant

And

MS TURNER 

First Respondent

MR REECE 

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings come before me today for less adversarial trial.  The issues in dispute are the allocation of parental responsibility for, and the residential parenting orders that ought be made in respect of, the child of the first and second respondents, namely a daughter, born in March 2007 (“the child’). 

2. The applicant in the proceedings is the maternal grandmother of the child.

3. When the matter was called before the Court there was no appearance by, or on behalf of, the second respondent father.

4. A review of recent history indicates that the second respondent father appears to have lost interest in the proceedings.  The evidence indicates that the last step taken in the proceedings by the second respondent father was to file a Response on 18 May 2009.  He was present at Court some weeks before that on 6 May 2009 when some interim parenting orders were made concerning the child.  The evidence indicates that he has spent some limited time with the child pursuant to those interim orders but that the child has not spent any time with the father since about June 2009.

5. The father failed to attend a Child Dispute Conference with the Family Consultant on 4 September 2009.  The father had not been present at Court less than a week before, on 31 August 2009, when the proceedings came before the Judicial Registrar but he was, however, represented on that occasion by a solicitor.  On that particular occasion, an order was made listing this matter for hearing before me today.  I draw the obvious inference that the solicitor who represented the second respondent father on that occasion drew the adjourned hearing date to the father’s attention.

6. The father’s solicitor in these proceedings filed a Notice of Ceasing to Act on his behalf on 6 October 2009.  There is no explanation before the Court for the father’s failure to attend today.  I draw the inference that he has voluntarily absented himself from the hearing.

7. As a consequence, the applicant maternal grandmother and the first respondent mother have invited the Court to invoke Rule 16.07(2) of the Family Law Rules.  I accede to that request.

8. The positions of the applicant maternal grandmother and the first respondent mother are now consistent.  They mutually seek parenting orders which effectively make provision for the allocation of parental responsibility in respect of the child solely to the mother, an order that the child live with the mother, and an order that the child spend time with the applicant maternal grandmother on the basis that is agreed between her and the mother.

9. The applicant maternal grandmother relies upon the following documents:

   a)Her Amended Application filed on 28 October 2009 – but only Orders 1 and 2 thereof;

   b)Her Affidavit filed on 28 October 2009;

   c)The Memorandum authored by the Family Consultant, Ms R, on 4 September 2009.

10. The first respondent mother relies upon the following documents:

    a)Her Response filed on 26 October 2009 – but only Orders 1 and 2 thereof;

    b)Her Affidavit filed on 26 October 2009.

11. I am satisfied on the basis of the evidence adduced that orders ought be made in accordance with the effective joint position of the maternal grandmother and the respondent mother.  I regard those orders as being in child’s best interests.

12. Commendably, neither party has sought any orders dictating what time will be spent by the child with the father, or as to the manner in which the child might communicate with the father.  That is not meant to suggest that there ought be no time spent by the child with the father, or that there ought be no communication between them. Rather, since the father has voluntarily chosen not to participate in the proceedings concerning the orders of that ilk which ought properly be made, it is appropriate that the Court pronounce no decision on those issues.

13. In the event that the father demonstrates an interest in the future of the child, he will be in a position to negotiate the regime of interaction between he and the child with the mother.  In the event that the mother and the father are unable to negotiate a satisfactory outcome in that regard, it will be open to the father to make further application to the Court for orders that will dictate the terms under which the child will spend time with him and communicate with him.

14. Accordingly, I make the following Orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  30 October 2009