Church v Overton

Case [2008] FamCA 952

FAMILY COURT OF AUSTRALIA

CHURCH & S OVERTON & ANOR [2008] FamCA 952

FAMILY LAW – CHILDREN – the special position of grandparents  - people significant to child’s care, welfare and development – who can apply for a parenting order

FAMILY LAW – CHILDREN – application by grandfather to spend time with and communicate with grandchildren – two further concurrent identical applications regarding other grandchildren – children have no relationship with grandfather – parents strongly opposed to any time or communication – when court should interfere in exercise of parental responsibilities – the rights of parents to determine with whom their children relate  - whether in best interests of the children in the circumstances to spend time with and communicate with grandfather

FAMILY LAW – CHILDREN – orders – order by consent that grandfather may send correspondence which will be kept by the parents until the children make enquiries about the grandfather and then will be provided to them – application otherwise dismissed
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth)
International Covenant on Civil and Political Rights
Souter & Meagher & Anor [2007] FamCA 18
Sedgley and Sedgley (1995) FLC 92-623
Irvine & Irvine (1995) FLC 92-624
Grant & Grant (1994) FLC 92-506
Samson & Jacks [2008] FamCA 176
C & B [2007] FMCAfam 539
Troxel v Granville 530 U.S. 57 (2000)
Re C:  (Contact:  Grandfather) [2004] NIFam 5
APPLICANT: Mr Church
FIRST RESPONDENT: Ms  S Overton
SECOND RESPONDENT: Mr Shell
INDEPENDENT CHILDREN’S LAWYER: Mr Theobald
FILE NUMBER: HBC 1100 of 2007
DATE DELIVERED: 12 November 2008
PLACE DELIVERED: HOBART
JUDGMENT OF: BENJAMIN J
HEARING DATE: 3 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Munro
SOLICITOR FOR THE APPLICANT: John Munro Barrister & Solicitor
COUNSEL FOR THE RESPONDENT: Mr Lee
SOLICITOR FOR THE RESPONDENT: Ogilvie Jennings

Orders

  1. Mr Church be permitted to forward letters and cards to his grandchildren Adam (born … October 2002) and Tom (born … December 2004) subject to the following:-

    (a)A limit of three letters or cards for each child in each calendar year (except 2008 when there is a limit of two letters or cards for that year);

    (b)The mother Ms S Overton is not required to give or show those letters or cards to the children unless enquiries are made by a child, after the child attains the age of thirteen years;

    (c)If after attaining the age of 13, Adam or Tom ask for information about the grandfather then the mother shall give to that child the letters and cards forwarded by the grandfather to that child pursuant to these orders.

    (d)The grandfather shall pay for the provision and maintenance of a post office box address at a post office reasonably nominated by and in the names of his three daughters, M Overton, T Overton, and S Overton, for the purpose of forwarding any such letters and/or cards.

  2. The mother shall safely retain any letters and/or cards sent to each of the children…

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Details
AGLC
Church v Overton [2008] FamCA 952
Case
[2008] FamCA 952
Decision Date

CaseChat Overview and Summary

In *Church v Overton*, Benjamin J of the Family Court of Australia considered applications by a grandfather seeking orders for time and communication with his grandchildren. The parents of the children were strongly opposed to any such contact, and the children themselves had no existing relationship with the grandfather. The grandfather made three identical applications concerning his three grandchildren.

The central legal issues before the court were whether it was in the best interests of the children to spend time with and communicate with their grandfather, and when a court should interfere with the exercise of parental responsibilities in such circumstances. The court was required to balance the general principle that children are entitled to have relationships with their grandparents with the rights of parents to determine with whom their children associate.

His Honour reasoned that while the *Family Law Act 1975* (Cth) supports the community view that children should be entitled to relationships with their grandparents, any determination must be informed by the family dynamics and the views of the parents. The court acknowledged the significant role parents play in their children's lives and the presumption of shared parental responsibility applying to them. However, the court also noted that parents' views are not determinative and that courts have a statutory obligation to resolve parenting conflicts, albeit without taking over the role of parents. The court emphasised that parents are generally best placed to know their children and family dynamics, and courts should be cautious about interfering with their exercise of parental responsibility unless warranted.

Ultimately, the court made consent orders permitting the grandfather to send a limited number of letters and cards to two of his grandchildren each year. These communications were to be held by the mother and only provided to the children if they made enquiries about their grandfather after reaching the age of thirteen. The grandfather was also ordered to pay for a post office box for this purpose. The grandfather's applications for time and communication were otherwise dismissed.

Orders

Orders of the court

1.

Mr Church be permitted to forward letters and cards to his grandchildren Adam (born … October 2002) and Tom (born … December 2004) subject to the following:-

(a) A limit of three letters or cards for each child in each calendar year (except 2008 when there is a limit of two letters or cards for that year);

(b) The mother Ms S Overton is not required to give or show those letters or cards to the children unless enquiries are made by a child, after the child attains the age of thirteen years;

(c) If after attaining the age of 13, Adam or Tom ask for information about the grandfather then the mother shall give to that child the letters and cards forwarded by the grandfather to that child pursuant to these orders.

(d) The grandfather shall pay for the provision and maintenance of a post office box address at a post office reasonably nominated by and in the names of his three daughters, M Overton, T Overton, and S Overton, for the purpose of forwarding any such letters and/or cards.

2.

The mother shall safely retain any letters and/or cards sent to each of the children by the grandfather pursuant to these orders.

3.

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.

4.

The application of the grandfather is otherwise dismissed.

5.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

6.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative. The right of parents to make decisions about their children The Act set out principles that parents [emphasis added] are expected to share duties and responsibilities for the care welfare and development of their children (s 60B(2)(c)). The Act provides that parents should agree about the future parenting of their children (s 60B(2)(d)). The Act makes parents endeavour to resolve parenting issues themselves. To do this they must generally undertake some alternative form of dispute resolution before commencing court proceedings. When parenting orders are made, parents can usually make changes to those orders by agreement. The presumption of shared parental responsibility only applies to parents. In Souter & Meagher & Anor [2007] FamCA 18, Cronin J said (emphasis added):132. Whether it was a legislative oversight or not, it is curious that the provision is limited to parents. This is particularly so in a case where a child such as R has been effectively parented by his great grandparents for the major portion of his life. It is quite clear in the additional considerations in s 60CC(3)(b), (d) and (f) that persons other than parents and in particular grandparents are treated as significant participants. However, the presumption in relation to the question of sharing parental responsibility is limited to the parents. That does not mean that a court cannot make an order for a relative to have parental responsibility (See s 64B(2)(c)). Counsel for the independent children’s lawyer pointed to the fact that the principle objects of Part VII refer to parents and that it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with that proposition. Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents. There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures (most notably, sterilisation) in the absence of a court order made by this Court.[5] But the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.[5] Department of Health & Community Services v JWB & SMB ("Marion 's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992)

Ratio Decidendi

Legal Principle Established

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