Cole and Collier and Collier - [2010] FMCAfam 1112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLE & COLLIER and COLLIER

[2010] FMCAfam 1112

FAMILY LAW – Parenting – Application for summary dismissal – application by grandmother to receive photos and forward correspondence and gifts – effect on parents of having to justify the exercise of their parental responsibility through litigation.

Family Law Act 1975, Part VII; ss.60B(2)(b); 64C; 65C(ba)
Federal Magistrates Court Act 1999, s.17A
Federal Magistrates Court Rules

Bemert & Swallow (2010) FAMCAFC 100

Applicant:

MS COLE

First Respondent:

MS COLLIER

Second Respondent:

MR COLLIER

File Number:

BRC 6134 of 2010

Judgment of:

Lapthorn FM

Hearing date:

30 September 2010

Date of Last Submission:

30 September 2010

Delivered at:

Newcastle

Delivered on:

8 October 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Lindeman

Solicitors for the Applicant:

Priest McCarron

Solicitor for the Respondents:

Ms Tondelstrand

Solicitors for the Respondents:

Schultz Toomey O'Brien Lawyers

ORDERS

The Application of Ms Cole filed 7 April 2010 and amended 27 September 2010 is summarily dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 6134 of 2010

MS COLE

Applicant

And

MS COLLIER

First Respondent

MR COLLIER

Second Respondent

REASONS FOR JUDGMENT

[X] is the two year old daughter of Ms Collier and Mr Collier. Ms Collier’s mother Ms Cole filed an application to spend time with her granddaughter but has since amended her application seeking orders for her to be provided a photograph of the child every couple of years and to be permitted to send cards and presents to the child.
The child’s parents oppose the application and have sought for it to be summarily dismissed.
The mother severed her relationship with the maternal grandmother back in 1994. The grandmother’s relationships with her other children: Ms B and Mr C Stanley are also estranged.
In support of her application the Applicant grandmother relied on:
a)Her initiating application filed 7 April 2010;
b)Her amended initiating application filed 27 September 2010; and
c)Her affidavit filed 7 April 2010.
The Respondents relied upon:
a)The response filed 16 June 2010;
b)The affidavit of the mother filed 16 June 2010;
c)The affidavit of the father filed 16 June 2010;
d)The affidavit of the mother’s father Mr G Stanley filed 16 June 2010;
e)The affidavit of the mother’s brother Mr C Stanley filed 16 June 2010; and
f)The affidavit of the mother’s sister Ms B filed 16 June 2010.
The hearing proceeded on the papers.
The child was born in 2008 and has lived her entire life with her mother and father. Her parents met and commenced living together in 1997, married in 2005 and live in Queensland.
The applicant grandmother and respondent mother have not had a relationship since 1994. In their affidavits both the grandmother and the mother set out their version of events as to the circumstances surrounding the break down of their relationship but regardless…

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: [2010] FMCAfam 1112
Decision Date

CaseChat Overview and Summary

The case of Cole and Collier and Collier involved an application by a grandmother, Ms Cole, seeking orders to receive photographs of her granddaughter, spend time with her, and to communicate and send gifts. The child's parents, Ms Collier and Mr Collier, opposed the application and sought its summary dismissal. The Federal Magistrates Court of Australia was tasked with determining whether the grandmother's application had a reasonable prospect of success, considering the best interests of the child as the paramount consideration.

The primary legal issue was whether the grandmother's application for parenting orders had any reasonable prospect of success, particularly in light of the long-standing estrangement between the grandmother and the child's mother. The court had to weigh the rights of the child to maintain a relationship with her grandmother against the parents' right to make decisions about their child's upbringing. The court also considered the potential stress and expense of litigation on the parents and the likelihood of the litigation achieving any change in the existing circumstances.

The court found that the child had no existing relationship with the grandmother, and the parents had made a joint decision that it was not in the child's best interests to develop such a relationship. The court emphasised that parents should not have to justify their decisions about their child's welfare through litigation, especially when there was no evidence to suggest that their decision-making was compromised. The court further reasoned that the litigation would be a source of high stress for the parents, potentially affecting their parenting, and was unlikely to achieve any meaningful change. Applying the principles from the case of Bemert and Swallow, the court concluded that the grandmother's application had no reasonable prospects of success and dismissed it summarily.

The court certified that the preceding paragraphs accurately reflect the reasons for judgment. The final order was that the application by Ms Cole was summarily dismissed, and no further proceedings would be pursued. The decision recognised the importance of respecting parental decisions while also considering the welfare of the child.

Orders