Church v T Overton & Anor - [2008] FamCA 965

FAMILY COURT OF AUSTRALIA

CHURCH & T OVERTON AND ANOR

[2008] FamCA 965

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
Sampson & 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 T Overton

SECOND RESPONDENT:

Mr Cooper

INDEPENDENT CHILDREN’S LAWYER:

Mr Theobald

FILE NUMBER:

HBF

1098

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 Mead

SOLICITOR FOR THE RESPONDENT:

Wallace Wilkinson & Webster

INDEPENDENT CHILDRENS LAWYER

Mr Theobald

Orders

The grandfather, Mr Church, be permitted to forward letters and cards to his grandchildren Kirsten (born … June 2005) and Cole (born … December 1998):-
(a) a limit of three letters or cards per child per year;
(b)The mother, Ms T Overton and/or the father, Mr Cooper are not required to give or show those cards to the children unless enquiries are made by a child after the child attains the age of thirteen years;
(c)The grandfather shall pay for a post office box at a post office reasonably nominated by his three daughters and in the name of his three daughters M Overton, T Overton and S Overton for the purpose of forwarding the letters and cards.
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.
The application of the grandfather is otherwise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FamCA 965
Decision Date: 12 November 2008

CaseChat Overview and Summary

In this matter before Benjamin J of the Family Court of Australia, the applicant, Mr Church, sought orders for time and communication with his grandchildren. The respondents, the parents of the children, strongly opposed any such contact. The dispute involved three separate but identical applications concerning different grandchildren, all of whom had no existing relationship with the grandfather.

The court was required to determine 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. The legal issues also encompassed the rights of parents to determine with whom their children relate and the special position of grandparents and other persons significant to a child's care, welfare, and development under the Family Law Act.

Benjamin J reasoned that while the Act supports the general community view that children should be entitled to a relationship with their grandparents, any determination must be informed by the family dynamics and the best interests of the children. The court acknowledged the significant weight given to parental views, but noted they are not determinative. The judge emphasised that parents are primarily responsible for their children's care and development, and courts should be cautious about interfering with their exercise of parental responsibility, as parents generally know their children and family dynamics best. The court also noted that the presumption of shared parental responsibility under the Act is limited to parents.

Ultimately, the court made consent orders permitting the grandfather to forward a limited number of letters and cards per child per year. These communications were to be held by the parents until the children attained the age of thirteen and made enquiries about the grandfather, at which point they would be provided. 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, and there were no orders as to costs.

Orders

Orders of the court

The grandfather, Mr Church, be permitted to forward letters and cards to his grandchildren Kirsten (born … June 2005) and Cole (born … December 1998):-

(a) a limit of three letters or cards per child per year;

(b) The mother, Ms T Overton and/or the father, Mr Cooper are not required to give or show those cards to the children unless enquiries are made by a child after the child attains the age of thirteen years;

(c) The grandfather shall pay for a post office box at a post office reasonably nominated by his three daughters and in the name of his three daughters M Overton, T Overton and S Overton for the purpose of forwarding the letters and cards.

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.

The application of the grandfather is otherwise dismissed.

That there be no order as to costs.

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

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.[6] 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.[6] 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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