Dukes & Anor and Talford - [2017] FamCA 63

FAMILY COURT OF AUSTRALIA

DUKES AND ANOR & TALFORD

[2017] FamCA 63

FAMILY LAW – CHILDREN – Best interests – Non-parent – With whom a child spends time – Where the applicants are the child’s maternal grandparents – Where the child’s mother is deceased – Where the applicants seek orders to spend time with the child once per month – Where the grandparents had close involvement in the early part of the child’s life – Where at trial the single expert changed the recommendations as set out in her report – Where there is a high level of conflict and mistrust between the parties – Where the child has been exposed to conflict – Where the child has displayed resistance to spending time with or communicating with the grandparents – Where orders requiring the child to spend time with the grandparents would expose the child to a continuation of conflict – Where the risk of the child having no relationship with the grandparents is outweighed by the likely trauma involved if structured spend time orders were made – Application dismissed – Order made that the child spend time with the grandparents as agreed between them and the father.

Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA

Aldridge & Keaton (2009) FLC 93-421
Burton & Churchin and Anor (2013) FLC 93-561
Valentine & Lacerra and Anor (2013) FLC 93-539

FIRST APPLICANT:

Ms Dukes

SECOND APPLICANT:

Mr Dukes

RESPONDENT:

Mr Talford

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

3317

2012

DATE DELIVERED:

10 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

1, 2, 3, 4 & 5 August 2016

REPRESENTATION

COUNSEL FOR THE

FIRST & SECOND APPLICANTS:

Mr Johnston

SOLICITOR FOR THE

FIRST & SECOND APPLICANTS:

Goldrick Farrell Mullan Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Longworth

SOLICITOR FOR THE RESPONDENT:

Gordon & Barry Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

The following parenting orders are made in relation to the child B born on … 2008.
The Amended Initiating Application filed by the maternal grandparents on 11 February 2014 be dismissed.
The child shall spend time with the maternal grandparents on such occasions and at such times as agreed between them and the father.
For the purpose of the orders the father and/or the child’s step-mother Ms Talford may, if the father considers it appropriate, be present when the child spends time with the maternal grandparents.
In the event that the child becomes distressed while spending time with the maternal grandparents and cannot be readily consoled, the maternal grandparents will telephone the father, so inform him and if requested by him so to do, make arrangements for the child to be collected from their care.
The grandparents on the one hand, and the father on the other hand shall each pay one half of the costs of the Independent Child Lawyer within…

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: [2017] FamCA 63
Decision Date: 10 February 2017

CaseChat Overview and Summary

The matter of *Dukes & Anor and Talford* concerned parenting orders sought by the maternal grandparents in relation to their grandchild, B. The application was brought by the maternal grandparents against the child's father and stepmother. The court was required to determine the nature and extent of the time the child would spend with the maternal grandparents, and the conditions under which such time would occur.

The primary legal issue before Johnston J was whether to grant the maternal grandparents' application for specific parenting orders. This involved considering the best interests of the child, B, and balancing the rights of the grandparents to have a relationship with their grandchild against the parental responsibilities and decisions of the father and stepmother. The court also had to consider the practical arrangements for the child's time with the grandparents, including supervision and communication protocols.

Johnston J dismissed the maternal grandparents' amended initiating application. The court made orders that the child would spend time with the maternal grandparents on occasions and at times as agreed between them and the father. Furthermore, the father and/or the child's stepmother could be present during these times if the father deemed it appropriate. In the event the child became distressed and could not be consoled, the grandparents were ordered to contact the father and, if requested, arrange for the child's collection. The court also ordered that the grandparents and the father each bear half the costs of the Independent Child Lawyer.

Orders

Orders of the court

The following parenting orders are made in relation to the child B born on … 2008.

The Amended Initiating Application filed by the maternal grandparents on 11 February 2014 be dismissed.

The child shall spend time with the maternal grandparents on such occasions and at such times as agreed between them and the father.

For the purpose of the orders the father and/or the child’s step-mother Ms Talford may, if the father considers it appropriate, be present when the child spends time with the maternal grandparents.

In the event that the child becomes distressed while spending time with the maternal grandparents and cannot be readily consoled, the maternal grandparents will telephone the father, so inform him and if requested by him so to do, make arrangements for the child to be collected from their care.

The grandparents on the one hand, and the father on the other hand shall each pay one half of the costs of the Independent Child Lawyer within 42 days.

All exhibits are released.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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