Wiverman and Anor and Wiverman and Anor

[2009] FamCA 636

FAMILY COURT OF AUSTRALIA

WIVERMAN AND ANOR & WIVERMAN AND ANOR [2009] FamCA 636

FAMILY LAW – CONSENT ORDERS – Children

Family Law Act 1975 (Cth)

APPLICANT: Mr and Mrs Wiverman (Snr)

1^st and 2^nd RESPONDENTS: Mr Wiverman and Ms Nott

FILE NUMBER: MLC 11690 of 2008

DATE DELIVERED: 9 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brewer

SOLICITOR FOR THE APPLICANT: Robert Halliday & Associates

COUNSEL FOR THE RESPONDENT: Ms Clark

SOLICITOR FOR THE 1^ST

RESPONDENT:

Cathleen Corridon Solicitors

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the grandparents engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That my reasons for judgment be transcribed and placed on the court file.

4. That pursuant to s 65DA(2) 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.

IT IS NOTED that publication of this judgment under the pseudonym Wiverman and Anor & Wiverman 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 11690 of 2008

MR AND MRS WIVERMAN (SNR)

Applicants

And

MR WIVERMAN AND MS NOTT

1^st and 2^nd Respondents

REASONS FOR JUDGMENT

1. This is a matter that was in the Court’s duty list, and I had it before me in January 2009.  At that stage, it was an application by the paternal grandparents.  The respondents were the father and mother of three children, who are aged six, three and less than one year old.  The proceedings were adjourned to the Senior Registrar’s List in March, and I gave the parties liberty to apply in the event that the Department of Human Services decided or agreed to discharge the order made under State Welfare legislation.  That order was necessary because, at that stage, there was an order under State Welfare legislation made by the Children’s Court of Victoria which was about to expire on 17 March.

2. The matter came back before the Senior Registrar on 17 March and he noted, at that stage, that there were Children’s Court proceedings involved, and there were various meetings to take place.  He then adjourned the proceedings to July, back to his list, not knowing, at that stage, that he was actually going to be absent from the registry, which is why the matter has been brought before me.

3. At the time that the parties, who were the applicants, filed the application in December 2008, they filed an affidavit in which very significant allegations were made against the parents of these very young children.  The remarkable thing about that was that the parties, as I recall, were living very close to one another.

4. Today, two significant things have happened.  First is the parties have reached agreement, but secondly, to use the words of Mr Brewer of counsel on behalf of the grandparents, the parties have managed to get together and have meetings to work out their differences.  All of which have been focussed on the best interests of children. 

5. For many years this Court has simply made orders by consent, notwithstanding, that there have been serious allegations made.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court does not have to inquire into the best interests of children where parties to proceedings reach agreement and consent orders are made. In part that is because of the fact that the Act is private law. It has disquietened me for some time, however, that the Court has been given material indicating serious concerns about the capacity of people to care for children, and then to hear no more, other than that orders are made by consent. I am aware of other judges having some similar disquiet.

6. In this case, however, notwithstanding what were very serious allegations made only in December last year, I am encouraged by the fact that the parties have not only got through what was, at least, eight, if not more, court events in a variety of court jurisdictions, but they have now, apparently, had no further involvement with the Department of Human Services, to the extent that the jurisdiction of this Court has been enlivened by the expiry of the Children’s Court orders.

7. I am very encouraged by the fact that the parties have focussed on the interests of the children, and agreed to make what are very sensible orders today.  This is one case where the Court should not be disquietened about the allegations that were made in December last year, because the parties have now resolved their differences in a very sensible way.  In those circumstances, I am prepared to make the orders.

8. In the matter of Wiverman and Wiverman & Wiverman and Nott, I make orders by consent, in terms of the minutes.  I will mark those as an exhibit, which will be exhibit A.  I will direct that those minutes remain on the court file.  I will ask the solicitor for the grandparents to engross and email those minutes to my associate within seven days.  And I will also order that the reasons I have just given be transcribed and be placed on the court file, and be made available to the parties.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 July 2009