Charters & Webb

Case [2022] FedCFamC1F 527

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Charters & Webb [2022] FedCFamC1F 527

File number(s): SYC 7278 of 2017
Judgment of: ALTOBELLI J
Date of judgment: 25 July 2022
Catchwords: FAMILY LAW – PARENTING – Application by maternal grandmother to spend time with the child – Where there are existing consent orders between the parents made in previous proceedings – Where the parents and Independent Children’s Lawyer oppose the orders sought by the maternal grandmother – Aboriginality of the child – Finding that it is not in the best interests of the child to spend time with the maternal grandmother.
Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:

Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229

Gibbs v Capewell (1995) 54 FCR 503; [1995] FCA 25

Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Sheldon & Weir (No. 3) [2010] FamCA 1138

Valentine & Lacerra and Anor (2013) FLC 93-539; [2012] FamCAFC 219

Webb & Guthrie [2016] FCCA 2285
Division: Division 1 First Instance
Number of paragraphs: 165
Date of hearing: 27–30 October 2020, 1–2 February 2021, 3–4 February 2022
Place: Wollongong (27–30 October 2020, 1–2 February 2021)
Sydney (via videoconference) (3–4 February 2022)
The Applicant: Litigant in Person
Counsel for the First Respondent: Mr Lawrence
Solicitor for the First Respondent: Acorn Lawyers
Counsel for the Second Respondent: Mr Alexander
Solicitor for the Second Respondent: Access Law Group
Counsel for the Independent Children's Lawyer: Mr Cairns
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 7278 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CHARTERS

Applicant
AND:

MR WEBB

First Respondent

MS GUTHRIE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2022

THE COURT ORDERS THAT:

1.The application of the Applicant maternal grandmother is dismissed.

2.All other extant applications in this matter are dismissed.

3.The Applicant is permitted to send letters, cards, gifts, and photographs to the child, X born in 2012 (“X”), noting that the First and Second Respondents are entitled to vet the same before giving them to X.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charters & Webb) has been approved pursuant to s 121(9)(g)…

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AGLC
Charters & Webb [2022] FedCFamC1F 527
Case
[2022] FedCFamC1F 527
Decision Date

CaseChat Overview and Summary

The case of Charters & Webb involved an application by the maternal grandmother of a child born in 2012, seeking to spend time with her. The parents and the Independent Children’s Lawyer opposed the application. The Family Court of Australia was required to determine whether it was in the best interests of the child to spend time with the maternal grandmother and, if so, on what terms and conditions. The Court held that it was not in the child's best interests to spend time with the maternal grandmother. The Court's decision was based on the evidence presented, which showed that the child had already experienced significant upheaval and trauma in her life, and that spending time with the maternal grandmother would likely cause further distress and instability. The Court also noted that the maternal grandmother had a history of making allegations of abuse against the father, which had not been substantiated, and that this history undermined her credibility as a witness.

The Court considered the applicable law, which required it to regard the best interests of the child as the paramount consideration. The Court also considered the objects and principles of Part VII of the Family Law Act 1975 (Cth), which include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, and ensuring that children receive adequate and proper parenting. The Court found that spending time with the maternal grandmother would not be in the child's best interests, as it would not promote her meaningful involvement with both of her parents, and could potentially expose her to further harm. The Court also noted that the child had a right to enjoy her culture, and that spending time with the maternal grandmother may not be consistent with this right, given the grandmother's history of making unsubstantiated allegations of abuse. The Court therefore dismissed the application and made orders permitting the maternal grandmother to send letters, cards, gifts, and photographs to the child, subject to vetting by the parents.

Orders

Orders of the court

SYC 7278 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CHARTERS

Applicant

AND:

MR WEBB

First Respondent

MS GUTHRIE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2022

THE COURT ORDERS THAT:

1. The application of the Applicant maternal grandmother is dismissed.

2. All other extant applications in this matter are dismissed.

3. The Applicant is permitted to send letters, cards, gifts, and photographs to the child, X born in 2012 (“X”), noting that the First and Second Respondents are entitled to vet the same before giving them to X.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This case is about X born in 2012 (“X”), who is currently nine and a half years old. The Court had to decide whether the Applicant maternal grandmother (“the grandmother”) should spend time with her, and, if so, on what terms and conditions. These reasons for judgment explain why the Court has ordered that X not spend any time with the grandmother.BACKGROUND The proceedings relating to X commenced in 2013, when she was about one year old. Initially the litigation was between her parents but the current application was commenced by the grandmother on 7 September 2017. The grandmother is 56 years old and her husband is 67 years old. They live in Q Town, a country town in New South Wales. Mr Webb (“the father”) is the First Respondent in this case. He is 35 years old and lives in the far western suburbs of Sydney. He is married. X has lived with the father and his current wife, Ms B since December 2016, when the Court ordered this to take place. The mother, Ms Guthrie (“the mother”) is 35 years old. She lives in a northern suburb of E City, in Queensland, and is the Second Respondent in this case. X’s parents met in 2009, married in 2011, and separated in June 2012. X was not born until a few months after her parents separated. After their separation, the parents were unable to reach an agreement about the father spending time with X, and the father filed an Initiating Application on 22 April 2013. The first significant orders in this case were made on 27 August 2013. They provided that the mother have sole parental responsibility for X, and that there be no time or communication between X and the father. On 21 May 2014, orders were made by consent on the third day of a final hearing before me. The orders provided for X to live with the mother, but spend time with the father, initially on a supervised basis. Within a very short time of making these orders, problems arose with compliance and the father filed a contravention application, recommencing the litigation. The litigation appears to have intensified thereafter. The mother sought an Apprehended Domestic Violence Order against the father, and filed an Application in a Case to vary the orders. Further interim orders were made by consent on 4 May 2015, providing for X to spend supervised time with the father. Later that year, the mother unilaterally relocated with X to a suburb in E City, Queensland. The matter came before me for a final hearing in April and May 2016 and I made final orders on 16 December 2016, the effect of which were to grant to the father sole parental responsibility, and for X to live with him and spend time with the mother. The father had, one year earlier, married Ms B I delivered reasons for judgment in relation to those orders on the same date, published as Webb & Guthrie [2016] FCCA 2285. In those reasons, I canvassed the involvement of the grandmother in X’s life at the time. At [74], I noted that it was clear that the grandmother was “intimately involved” in X’s daily life, and her involvement extended to a significant role in following up certain disclosures alleged to have been made by X (at [156]–[280]). Indeed, when the mother relocated with X to E City in 2015, the grandmother would accompany X to Sydney once a fortnight to spend time with the father (at [282]).

Evidence

Evidence Before The Court

To be fair to the grandmother, it must also be recognised that the Family Report dated 16 March 2020 provided limited support to the grandmother’s case, but at least favoured time no more than four hours once every two months. But that too changed during cross‑examination of the family consultant, when she recommended, albeit with some reluctance and possible sadness, that it was in X’s best interest for her not to have any time with the grandmother.THE EVIDENCE In support of her case, the grandmother relied on the following documents:(a)Her affidavit filed 20 February 2018;(b)Her affidavit filed 26 September 2018(c)Her affidavit filed 25 September 2020;(d)Affidavit of Ms D filed 30 January 2019;(e)Affidavit of Mr F filed 19 May 2020;(f)Affidavit of Ms G filed 19 May 2020;(g)Affidavit of Ms H filed 10 September 2020;(h)Affidavit of Ms J filed 22 September 2020;(i)Affidavit of Ms K filed 24 September 2020;(j)Her Notice to Admit Facts filed 5 May 2020;(k)Case outline and annexure filed 12 October 2020;(l)Her Initiating Application filed 21 January 2022 (amended); and(m)Various documents tendered and marked as exhibits A1–A21. In support of his case, the father relied on the following documents:(a)His Amended Response to Initiating Application filed 25 September 2020;(b)His affidavit filed 25 September 2020;(c)Affidavit of Ms B filed 25 September 2020;(d)Affidavit of Ms L filed 25 September 2020;(e)Notice of Dispute filed 19 May 2020; and(f)His case outline filed 14 October 2020. In support of her case, the mother relied on the following documents:(a)Amended Response to Initiating Application filed 25 September 2020;(b)Her affidavit filed 25 September 2020;(c)Affidavit of Mr C filed 25 September 2020;(d)Notice of Disputing Facts filed 20 May 2020;(e)Case outline filed 12 October 2020; and(f)Medical notes concerning her mental health, tendered and marked as exhibit 1R1. In support of her case, the Independent Children’s Lawyer relied on the following documents:(a)Child Dispute Conference Memorandum prepared by Ms M dated 12 December 2018;(b)Family Report prepared by Ms M dated 16 March 2020, tendered and marked as exhibit ICL1; and(c)Case outline filed 19 October 2020. Witnesses who filed affidavits also gave oral evidence at the final hearing, with the exception of Ms J, Ms K, and Ms G, who were not required for cross-examination.THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a)to maintain a connection with that culture; and(b)to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii)to develop a positive appreciation of that culture.(Emphasis in original)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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