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 of their different view points in that regard the reality for them is that there is no relationship between the Applicant and the mother. The Applicant has never seen her granddaughter.
The grandmother’s application is one for parenting orders in relation to the child. All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. In determining their outcome the Court must consider the best interests of the child as the paramount consideration.
Whilst many of the objects and principles of Part VII relate to parents and children, s60B(2)(b) provides that, except when would be contrary to a child’s best interests, a child has a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to their care, welfare and development such as grandparents and other relatives. A grandparent may apply for a parenting order.[1]
[1] S65C(ba); S64C provides that a parenting order may be made in favour of a parent or some other person
The Respondents have asked the court to summarily dismiss the grandmother’s application. The Court may do so if it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding.[2] It is not necessary for the proceeding to be hopeless or bound to fail for it to have no reasonable prospect of success.[3]
[2] S17A Federal Magistrates Court Act1999; Rule 13.10 Federal Magistrates Courts Rules
[3] S17A(3) Federal Magistrates Court Act 1999
It was submitted that the Court would find that in the circumstances of this case the orders sought by the Applicant are not in the child’s best interests and accordingly the application has no reasonable prospects of success.
The child does not have any relationship with the maternal grandmother and the parents have formed the view that it would not be in her best interests to commence a relationship with the grandmother. In making such decision the parents have exercised their parental responsibility. This is a decision that they have come to together. A Court must be concerned when considering an application by a grandparent to become involved with a child, even in such a distanced way as proposed by the Applicant’s amended application, to ensure that parents exercising their parental responsibility in appropriate and child focused ways do not have that responsibility undermined by unnecessary interference from the Courts.
In this particular case the mother’s estrangement from her mother is long standing. Her estrangement is not hers alone but shared by her sister and brother. Although Mr C Stanley has allowed his mother to meet his young child on one occasion he intends to limit his child’s relationship with the grandmother. He is supportive of the mother’s position in this matter.
Whilst the proposed orders of the maternal grandmother in her amended application do not have a significant and direct effect on the child given her age, I am satisfied that it is relevant to take into account the context of the long standing estrangement between the mother and the grandmother. Although the mother did not file any medical evidence to support the argument that she might be psychologically compromised by having to forward photos to and receive correspondence from her mother the evidence of both parties clearly establishes the estrangement is long standing and unlikely to change such that I am satisfied if the litigation is allowed to continue it is highly likely the mother will be able to establish she would suffer emotional hurt if required to comply with the orders and by the litigation itself.
Parties should be spared the stresses and expense of litigation when the outcome of that litigation is unlikely to see any change from the current circumstances.
In an ideal world a grandparent would have a relationship with his or her grandchildren. There are circumstances however when that is not appropriate or practicable or in a child’s best interests.
In Bemert & Swallow[4] the Full Court considered an application to reinstate an abandoned appeal in a case where the trial judge, Justice Watts, had made orders to summarily dismiss an application by a maternal grandfather. The grandfather wanted to see his grandchildren with whom he did not have a relationship but the parents vehemently opposed this. The basis of their concern was that the mother had been sexually abused by the grandfather as a child.
[4] (2010) FAMCAFC 100
The trial judge held that the parents were entitled to make a decision as to whether the children saw the grandfather without having to justify it through litigation. His Honour held that it would make no sense in that case to embark upon a course of litigation which would be difficult to contain and would likely be protracted; be a source of high stress for a parent to whom the children are primarily attached; might psychologically injure or disable that parent and consequently put the children at psychological risk; and was without any realistic prospect of success. Finding that it would not be in the children’s best interests for the litigation to proceed and that the application could not possibly succeed his Honour summarily dismissed the application. Although the Full Court considered this matter on the issue of the reinstatement of an abandoned appeal, there was no criticism of his Honour’s approach.
The parents relied on that decision in support of their argument for summary dismissal of this case. Mr Lindeman argued that Bemert & Swallow was distinguishable because of the serious nature of the allegations against the grandfather in that case and the fact that the grandmother in this case had amended her Application and no longer sought time with the child but merely sought an opportunity to receive photos and forward correspondence and gifts.
Whilst the facts in the Bemert and Swallow were significantly different to those in this case I am satisfied that principles are applicable.
The child does not have any relationship with the grandmother and the proposed orders would not in any way aid the development of a meaningful relationship for the child’s benefit.
The parents have made a decision in the exercise of their parental responsibility for the child that she will not have a relationship with her grandmother. In the absence of any evidence to suggest that the parents’ ability to make decisions for the benefit of the child are in any way compromised, they should not have to justify their decision making through litigation.
Although it was submitted on behalf of the parents that the litigation may be difficult to contain and therefore become protracted on balance I am not so persuaded. It would not be necessary to canvass in detail the reasons for the estrangement between the grandmother and her children given it is accepted by both parties that the reality is that for at least 16 years the mother has been estranged from her mother.
I am however satisfied that the litigation would be a source of high stress for the mother and possibly her husband and there is the potential for that stress to have a flow on effect to their parenting.
When I weigh all of these factors I am persuaded that the Applicant’s application has no reasonable prospects of success and the Respondents should not be put through the expense and stress of litigation.
For these reasons I will summarily dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date: 8 October 2010