Danes & Danes & Anor - [2013] FMCAfam 281

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANES & DANES & ANOR

[2013] FMCAfam 281

FAMILY LAW – Parenting – application by maternal grandmother – problematic relationship between mother and maternal grandmother – maternal grandmother’s lack of insight into impact of her behaviour and current litigation on the mother – consideration of best interests of subject children – application of maternal grandmother dismissed – otherwise consent orders as between mother and father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 64C, 65C, 65DAA

Oldfield [2012] FMCAfam 22
Church v T Overton & Anor [2008] FamCA 965
Russell [2009] FamCA 28
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GRR [2010] HCA 4

Applicant:

MS A DANES

First Respondent:

MS C DANES

Second Respondent:

MR BRAY

File Number:

SYC 6705 of 2011

Judgment of:

Foster FM

Hearing dates:

17, 18 & 19 December 2012, 21 February 2013

Date of Last Submission:

8 March 2013

Delivered at:

Sydney

Delivered on:

28 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Hodgson

Counsel for the First Respondent:

Mr Greenaway

Solicitors for the First Respondent:

Norwest Family Law

Counsel for the Second Respondent:

Self Represented

Solicitors for the Independent Children’s Lawyer:

Legal Aid Sydney

ORDERS

That the Application of the Applicant Maternal Grandmother be dismissed.
That the applicant spend time with and communicate with the children as agreed between the mother, the father and the applicant.
That the parties be restrained from subjecting the children to any form of hitting or physical striking and they shall use their best endeavours to ensure that no other person does so.
That the parties be restrained from using or being under the influence of any illegal drug or from being under the influence of alcohol to excess when the children are in their care.
That the parties be restrained from bringing the children into contact with any person who is using or is under the influence of any illegal drug or any person who has consumed alcohol to excess.
That the mother do all things necessary to engage in the Brighter Futures Program and continue to attend until such time as she and the children are discharged from the program and during the continuance of her engagement in the said program obey all reasonable directions given to her as to her engagement in the program or engagement in any other program or counselling as is recommended.
That the Independent Children’s Lawyer file and serve short submissions as to costs sought by the Independent Children’s Lawyer within 14 days from this date.
That each of the parties file and serve short submissions as to costs sought by the Independent Children’s Lawyer within a further 14 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6705 of 2011

MS A DANES

Applicant

And

MS C DANES

First…

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.

Continue reading Danes & Danes & Anor

Details

AGLC: DANES & DANES & ANOR [2013] FMCAfam 281
Case: [2013] FMCAfam 281
Decision Date: 28 March 2013

CaseChat Overview and Summary

Danes & Danes & Anor was a family law matter before the Family Court of Australia where the primary dispute centred on the relationship between a maternal grandmother (the applicant) and her grandchildren, and the impact of any contact on the children's welfare. The mother and father of the children opposed the grandmother's application to have a more involved role in the children's lives, citing concerns about the grandmother's manipulative and obsessive behaviour, and the potential risk to the children's well-being.

The court was required to determine whether the applicant should be granted the ability to become involved in the children's day-to-day lives, and if so, under what conditions. The court needed to weigh the children's wishes, their relationship with their parents, and the potential impact of any changes to the children's circumstances. It was also necessary to consider the additional considerations outlined in the Family Law Act, including the children's need for protection from harm and the need to promote their participation in decision-making processes.

The court found that the applicant's relationship with the children was problematic, at best, and potentially harmful, at worst. The court considered the children's primary attachment to their mother and the risk of them being enmeshed in the conflict between the applicant and the mother. The court gave little weight to any wishes the children might have expressed, due to their young ages and the toxic nature of the relationship between the applicant and the parents. The court found that the children's relationship with their father had been restored, and the father considered the mother's partner to be a beneficial father figure for the children. Given the problematic nature of the applicant's relationship with the children, the court found that the orders sought by the mother were favoured.

The court dismissed the applicant's application and made several orders to protect the children's welfare. The orders included restrictions on the parties subjecting the children to any form of hitting or physical striking, using illegal drugs or consuming alcohol to excess, and being under the influence of any illegal drug or alcohol when the children were in their care. The mother was also ordered to engage in the Brighter Futures Program and obey all reasonable directions given to her. The parties were required to file and serve short submissions as to costs sought by the Independent Children's Lawyer.

Orders

Orders of the court

That the Application of the Applicant Maternal Grandmother be dismissed.

That the applicant spend time with and communicate with the children as agreed between the mother, the father and the applicant.

That the parties be restrained from subjecting the children to any form of hitting or physical striking and they shall use their best endeavours to ensure that no other person does so.

That the parties be restrained from using or being under the influence of any illegal drug or from being under the influence of alcohol to excess when the children are in their care.

That the parties be restrained from bringing the children into contact with any person who is using or is under the influence of any illegal drug or any person who has consumed alcohol to excess.

That the mother do all things necessary to engage in the Brighter Futures Program and continue to attend until such time as she and the children are discharged from the program and during the continuance of her engagement in the said program obey all reasonable directions given to her as to her engagement in the program or engagement in any other program or counselling as is recommended.

That the Independent Children’s Lawyer file and serve short submissions as to costs sought by the Independent Children’s Lawyer within 14 days from this date.

That each of the parties file and serve short submissions as to costs sought by the Independent Children’s Lawyer within a further 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is appropriate to have regard to the relevant additional considerations before returning to consider the primary considerations set out in section. As to the subject children’s wishes in considering what weight should be given to the child’s wishes if expressed, the court has regard to the children’s ages and the overarching issues arising out of what can only be seen as the toxic relationship between the applicant and the child’s parents. The risk of the children being enmeshed in the conflict between the applicant and the mother is significant. In all the circumstances the court could afford little weight to any wishes even if expressed by inference or otherwise. In considering the nature of the relationships that the children have with the parents it is clear that they have a primary attachment to the mother. The children’s relationship with their father has been restored following the mother’s temporarily relocation to [T] and orders have been made by consent as to the father’s time with the children. The children’s father considers that the mother’s partner represents to the children a beneficial and significant father figure. The applicant’s relationship with the children for the reasons canvassed above can at best be described as problematic and at worst manipulative, obsessive and presenting a risk to the children’s well-being in the context of their primary relationship with the mother. This factor clearly favours the orders sought by the mother. The parents have taken a position that clearly evidences no willingness or ability on their part to facilitate or encourage the children’s relationship with the applicant unless by agreement. They seek an order that the application before the court be dismissed. The applicant seeks orders that would see her have the ability to become again involved in the children’s day-to-day lives. The impact of the reigniting of her relationship with the children and the significance of any time with the children as it impacts upon the parents, particularly the mother is of great concern to the report writer and to the court. The applicant maternal grandmother lacks insight into her own personality and behavioural issues as they impact upon the relationships in her life, particularly with perhaps the most important figure in the lives of the children, the mother. The court is satisfied that the applicant has no ability to empathise with the needs of the mother and of the children. It is of concern that should the applicant have some form of relationship with the children restored by court order the impact upon the relationship between the mother and the children would be that the parental capacity of the mother is adversely affected and compromised to the detriment of the children. As to the likely effect of any changes in the children’s circumstances the children at present have no time with the applicant save for what appears to have been some coincidental contact. A change in this circumstance that sees a resumption of some form of contact with the applicant presents as contraindicated for the children. The children will on all indications again become immersed in the relationship issues between the applicant and primarily the mother. The reporter writer expresses concerns as to the adverse impact this will have on the mother and in oral evidence regrettably strongly supports there being no time with the applicant.