Family Court of Australia
| COLEMAN & HINDLE & ORS | [2011] FamCAFC 8 |
| FAMILY LAW – APPEAL – From a Judge of the Family Court of Australia – CHILDREN – Best interests of the child – Where the maternal grandmother sought to challenge the findings of fact and the orders made by the trial Judge on the basis that the evidence presented by the parents, the Independent Children’s Lawyer and the Department of Communities (QLD) was fabricated – Where the maternal grandmother asserted that the trial Judge had demonstrated both actual and perceived bias through his conduct of the proceedings in accepting the evidence of the respondents over her own evidence and by making orders which could not be supported on the evidence – Where the maternal grandmother asserted that the adverse credit findings made against her and the maternal grandfather by the trial Judge were unsupported on the evidence – Where it was asserted that the trial Judge erred in restraining the grandparents from filing any further applications under the Family Law Act 1975 (Cth) in relation to the children – Where it was asserted that the orders made by the trial Judge did not uphold the intentions of the Family Law Act 1975 (Cth) as envisaged by Parliament. HELD – No demonstrated error that the trial Judge acted upon a wrong principle or that his Judgment was plainly wrong – No demonstrated errors by the trial Judge in his findings of fact, including credit findings, his application of the law or in the exercise of his discretion – No evidence suggesting that the trial Judge conducted the proceedings without regard to the principles of procedural fairness – Appeal dismissed. FAMILY LAW - COSTS – Despite the fact that the appeal was not an arguable case, no order as to costs granted on the basis of financial hardship and the poor health and well being of the grandmother |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 Cross v Beaumont (2008) 39 Fam LR 389 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Korban & Korban [2009] FamCAFC 143 MRR v GR (2010) 240 CLR 461 Neil v Nott (1994) 121 ALR 148 Norbis v Norbis (1986) 161 CLR 513 Re F: Litigants in person guidelines (2001) FLC 93-072 |
| APPELLANT: | Mrs Coleman |
| RESPONDENT: | Mr Hindle |
| SECOND RESPONDENT: | Ms Hindle |
| THIRD RESPONDENT: | Department of Communities (Child Safety Services) |
| INTERVENOR: | Mr Coleman |
| INDEPENDENT CHILDREN’S LAWYER: | Damien Carter, Carter Farquar |
| FILE NUMBER: | BRC | 1353 | of | 2008 |
| BRC | 5431 | of | 2008 |
| APPEAL NUMBER: | NA | 53 | of | 2010 |
| DATE DELIVERED: | 28 January 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, O’Ryan & Strickland JJ |
| HEARING DATE: | 29 September 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 319 |
REPRESENTATION
| COUNSEL/SOLICITOR FOR THE APPELLANT: | Self-represented… |
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Details
- Case
- [2011] FamCAFC 8
- Decision Date
CaseChat Overview and Summary
The case of Coleman and Hindle and Ors involved a dispute regarding the care and custody of two children. The appeal was against the orders made by Justice Watts on 22 April 2010, which were subsequently dismissed by the court. The case came before the court to decide on the legal issues surrounding the best interests of the children, particularly in relation to their contact with their maternal grandparents. The Family Consultant provided expert evidence that was central to the court's consideration, summarizing the views of the children, their parents, and the broader family dynamics.
The legal issues before the court included determining whether contact with the maternal grandparents would be in the best interests of the children, given the dysfunctional relationship between the mother and the grandparents, and the children's expressed wishes to avoid contact. The court had to weigh the evidence and expert opinion against the statutory requirements under the Family Law Act, which prioritises the best interests of the child. The court was also tasked with considering the stability and emotional security of the children within the current living arrangements, as opposed to any potential disruption that contact with the grandparents might cause.
In reaching its decision, the court considered the expert evidence provided by the Family Consultant, which highlighted the positive relationships within the children's current environment. The court found that the current arrangements were stable, with the children showing improved emotional stability and social development. The court also noted the children's consistent opposition to any contact with their maternal grandparents, as well as the potential for their relationship to negatively impact the family's stability. Based on these findings, the court concluded that any contact with the grandparents would be detrimental to the children's emotional security and the family's overall stability.
The court dismissed the appeal against the orders made by Justice Watts on 22 April 2010 and made no order as to costs. This decision upheld the lower court's ruling that contact with the maternal grandparents should be limited to protect the children's best interests.
The legal issues before the court included determining whether contact with the maternal grandparents would be in the best interests of the children, given the dysfunctional relationship between the mother and the grandparents, and the children's expressed wishes to avoid contact. The court had to weigh the evidence and expert opinion against the statutory requirements under the Family Law Act, which prioritises the best interests of the child. The court was also tasked with considering the stability and emotional security of the children within the current living arrangements, as opposed to any potential disruption that contact with the grandparents might cause.
In reaching its decision, the court considered the expert evidence provided by the Family Consultant, which highlighted the positive relationships within the children's current environment. The court found that the current arrangements were stable, with the children showing improved emotional stability and social development. The court also noted the children's consistent opposition to any contact with their maternal grandparents, as well as the potential for their relationship to negatively impact the family's stability. Based on these findings, the court concluded that any contact with the grandparents would be detrimental to the children's emotional security and the family's overall stability.
The court dismissed the appeal against the orders made by Justice Watts on 22 April 2010 and made no order as to costs. This decision upheld the lower court's ruling that contact with the maternal grandparents should be limited to protect the children's best interests.
Orders
Orders of the court
1.
The Appeal against the orders made by the Honourable Justice Watts on 22 April 2010 be dismissed.
2.
There be no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The evidence of the Family Consultant was identified and summarised by his Honour in paragraphs 340 to 345. We set out those paragraphs hereunder:340.The independent expert made the following comments regarding the Father:340.1. That he spoke openly and amicably and his views correspond with those of the mother.340.2. He sees the boys most weekends, staying the night at the mother’s house. His relationship with the mother’s partner is very friendly. I note that this is not the current arrangement – the boys spend most weekends with the father at the father’s home. Only occasionally will the father spend the weekend at the mother and [Mr W’s] home.340.3. He was positive about the children’s prospects under the mother’s care, and has seen improvement in the boys and the mother since the boys were removed from the maternal grandmother’s influence.340.4. He did not want the maternal grandparents to be involved in the boys’ lives and finds it reassuring that the Department is still involved and could protect the family against the maternal grandparents.341.The independent expert made the following comments regarding the Mother:341.1. She described her living arrangements: the children and her partner live together in a four bedroom house. She has a ‘fantastic relationship’ with her partner who is currently unemployed but looking for work. He is therefore able to care for the boys, with whom he has formed a strong bond. The mother is working in aged care.341.2. She has a good relationship with the father, who also has a strong bond with the boys and friendship with her partner.341.3. [X] is attending high school and the mother feels he is developing socially although he lacks organisational skills. [Y] has an improved attitude to school and is making friends. She feels that both boys are now emotionally stable.341.4. The mother has a negative attitude to the maternal grandparents and is upset when speaking about their allegations. She does not want the boys to have contact with them.341.5. She says she has little contact with the Department.341.6. She is optimistic about her life including her family, relationships with her partner and her former partner, and about work.342.The independent expert made the following comments regarding the Mother’s partner, [Mr W]:342.1. He is very positive about his relationship with the mother, the father and the children.342.2. He is positive about his job prospects, but in the meantime is happy caring for the boys.343.The independent expert made the following comments regarding [X]:343.1. Once the children were reassured the grandparents would not be attending, they interacted freely and comfortably with the mother, father, and [Mr W].343.2. [X] likes living with his mother better than with his grandparents and finds he is calmer. He does not want anything to do with his Grandparents and describes the abusive experiences he had with them. He confirmed they had tried to get him into the car and take him away.343.3. He is very positive about his parents getting along so well, and also with the mother’s partner.344.The independent expert made the following comments regarding [Y]:344.1. [Y] similarly shows an improved attitude and reports that he loves school and playing with friends. He enjoys the relationship with his parents, and how well the parents get along. 344.2. He expressed that he does not want to spend time with his Grandparents.345. The independent expert concluded that:345.1. The care of the children has been stable under the current arrangements. The three adults are remarkably co-operative and trustful. Their good relations are beneficial to the children.345.2. Both boys showed consistent opinions in this and previous interviews that they did not want to spend time with their maternal grandparents.345.3. The dysfunctional relationship between the Mother and the maternal grandparents would impact negatively on the whole family should there be any contact.345.4. Conclusion: any contact with the grandparents would destabilise the boys’ emotional security and the family’s stability. (emphasis in original)
Ratio Decidendi
Legal Principle Established
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