ESMOND & IRVING - [2011] FMCAfam 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESMOND & IRVING

[2011] FMCAfam 642

FAMILY LAW – Children – parenting – parenting orders – interim orders – application for interim orders – application by grandmother to spend time with child – best interests of the child – child aged 3 years.

COSTS – Application for costs – indemnity basis – where respondent applied for an order for costs against the applicant on an indemnity basis – no basis for a costs order on an indemnity basis – application dismissed.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65C, 117

Bright & Bright v Bright & Mackley (1995) FLC 92-570
Church & M. Overton & Anor [2008] FamCA 953
Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225
Esmond & Irving [2011] FMCAfam 217

Applicant:

MS ESMOND

Respondent:

MS IRVING

File Number:

SYC 7892 of 2010

Judgment of:

Scarlett FM

Hearing date:

20 June 2011

Date of Last Submission:

20 June 2011

Delivered at:

Sydney

Delivered on:

7 July 2011

REPRESENTATION

Solicitors for the Applicant:

Legal Aid NSW

Solicitors for the Respondent:

Bilias & Associates

ORDERS

UNTIL FURTHER ORDER:

All earlier parenting Orders are vacated.
The applicant grandmother is to spend time with the child [X] born [in] 2007 from 9:00 am to 12 noon each alternate Sunday commencing on Sunday 10 July 2011 such time to take place at the home of the applicant grandmother.
For the purposes of giving effect to Order (2) above the grandmother is to collect the child from the home of the respondent mother at the beginning of the time and return him to the home of the respondent mother at the conclusion of the time with the child.
The applicant grandmother and any third party acting upon her instructions are restrained from removing the child [X] from the Sydney metropolitan area.
The applicant grandmother is restrained from removing or attempting to remove the child [X] born [in] 2007 from Australia and for this purpose the name of the child is to be placed on the Airport Watch List otherwise known as the PACE ALERT System maintained by the Australian Federal Police until 31 December 2014.
The applicant grandmother is restrained from discussing these proceedings with or in the presence or hearing of the child [X].
The applicant grandmother is restrained from denigrating or criticising the mother or Mr A to or in the presence or hearing of the child [X].
The applicant grandmother is restrained from using any form of physical discipline on the child [X] or permitting any third person to do so.
The applicant grandmother is restrained from posting any photograph of the child [X] on Facebook or on any the Internet or form permitting any third person to do so.
The application by the mother that the grandmother pay the mother’s costs on an indemnity basis is dismissed.
The parties are to attend upon a Family Consultant for the purpose of preparation of a Family Report under the provisions of s.62G…

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

AGLC: ESMOND & IRVING [2011] FMCAfam 642
Case: [2011] FMCAfam 642
Decision Date: 7 July 2011

CaseChat Overview and Summary

The matter before the Family Court of Australia was an application by the applicant grandmother for interim parenting orders to spend time with her grandchild, [X], a three-year-old child. The application was opposed by the child's mother, the respondent, who was the custodial parent. The grandmother sought the orders to address concerns about the child's welfare and upbringing. The court was required to determine whether the proposed arrangements would be in the best interests of the child and if the grandmother should be granted the requested time with the child.

The court considered various factors, including the child's age, the importance of maintaining a stable and consistent environment, and the potential impact of the proposed arrangements on the child's relationship with both the grandmother and the mother. The court also examined the grandmother's past conduct and the mother's opposition to the application. Ultimately, the court concluded that the proposed arrangements would be in the child's best interests, given the specific circumstances of the case.

The court issued detailed interim parenting orders, allowing the grandmother to spend time with the child on alternate Sundays and imposing various restrictions to safeguard the child's welfare. These restrictions included prohibiting the grandmother from removing the child from the Sydney metropolitan area, discussing the proceedings with or in the presence of the child, denigrating or criticising the mother or the child's father, using physical discipline, or posting photographs of the child on the internet. The court also dismissed the mother's application for costs on an indemnity basis.

The final orders of the court included vacating all previous parenting orders, setting out specific arrangements for the grandmother to spend time with the child, and imposing a range of restrictions on the grandmother's conduct to protect the child's welfare. The court also directed the parties to attend a Family Consultant to prepare a Family Report under the Family Law Act.

Orders

Orders of the court

UNTIL FURTHER ORDER:

All earlier parenting Orders are vacated.

The applicant grandmother is to spend time with the child [X] born [in] 2007 from 9:00 am to 12 noon each alternate Sunday commencing on Sunday 10 July 2011 such time to take place at the home of the applicant grandmother.

For the purposes of giving effect to Order (2) above the grandmother is to collect the child from the home of the respondent mother at the beginning of the time and return him to the home of the respondent mother at the conclusion of the time with the child.

The applicant grandmother and any third party acting upon her instructions are restrained from removing the child [X] from the Sydney metropolitan area.

The applicant grandmother is restrained from removing or attempting to remove the child [X] born [in] 2007 from Australia and for this purpose the name of the child is to be placed on the Airport Watch List otherwise known as the PACE ALERT System maintained by the Australian Federal Police until 31 December 2014.

The applicant grandmother is restrained from discussing these proceedings with or in the presence or hearing of the child [X].

The applicant grandmother is restrained from denigrating or criticising the mother or Mr A to or in the presence or hearing of the child [X].

The applicant grandmother is restrained from using any form of physical discipline on the child [X] or permitting any third person to do so.

The applicant grandmother is restrained from posting any photograph of the child [X] on Facebook or on any the Internet or form permitting any third person to do so.

10.

The application by the mother that the grandmother pay the mother’s costs on an indemnity basis is dismissed.

11.

The parties are to attend upon a Family Consultant for the purpose of preparation of a Family Report under the provisions of s.62G of the Family Law Act at such time and place as they may be directed.

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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