ESMOND & IRVING
[2011] FMCAfam 642
•7 July 2011
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 of the Family Law Act at such time and place as they may be directed.
IT IS NOTED that publication of this judgment under the pseudonym Esmond & Irving is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7892 of 2010
| MS ESMOND |
Applicant
And
| MS IRVING |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the paternal grandmother of a little boy called [X] for orders that she spend time with him. [X] was born [in] 2007 and is therefore three years and eight months old. He lives with his mother. [X]’s father has left Australia and lives in Lebanon.
Orders Sought
By her Application filed on 15th December 2010, the grandmother seeks orders that [X] spend time with her:
a)Each alternate weekend from 10:00 am on Saturday until 5:00 pm on Sunday;
b)For four hours on the child’s birthday;
c)On the weekend after Mother’s Day;
d)On the weekend that includes Father’s Day;
e)On the first day of all Islamic feasts; and
f)At such further times as the parties may agree.
The mother opposes those orders. Her primary application is for the grandmother’s Application to be dismissed.
In the alternative, she seeks orders that:
a)[X] should spend time with the grandmother for two hours twice a month at the residence of the maternal uncle and under his supervision; and
b)The grandmother’s time with [X] should be suspended on the following days:
i)Mother’s Day;
ii)Father’s Day;
iii)The child’s birthday;
iv)The mother’s birthday;
v)On the Islamic religious holidays of Eid-Ul-Fitr and Eid-Ul-Adha; and
vi)For the duration of any period when the child is travelling or on holiday with mother.
c)That the grandmother be restrained from removing the child from the Sydney metropolitan area;
d)That the child’s name be placed on the Airport Watch List;
e)That the grandmother be restrained from taking any photographs of the child or posting any photographs of him on the Internet;
f)That the parties be restrained from discussing these proceedings with the child;
g)That the parties are restrained from speaking to the child in derogatory terms about the mother or the child’s stepfather;
h)That the grandmother be restrained from harassing, threatening or engaging in any violence toward the mother;
i)That the grandmother be restrained from approaching or entering the mother’s residence, the residence of the maternal grandparents, their place of work, any place where [X] may be visiting, or [X]’s Day Care or Pre School;
j)Leave to apply on 48 hours’ notice; and
k)An order for costs on an indemnity basis.
Background
The grandmother was born [in] 1953. She is married Mr E, who was born [in] 1949. They were married in 1976. They have two sons, Mr Esmond, who was born [in] 1979, and [first name omitted] who was born [in] 1981.
Mr Esmond is the father of the subject child [X].
Mr Esmond married the mother [in] 2002 and [X] was born [in] 2007.
The father and mother separated on 22nd December 2008. The father left Australia for Lebanon in April 2009 and has remained outside Australia ever since.
The father and mother went through a religious divorce on 3rd August 2009.
The mother claims that the grandmother has visited [X] on only five occasions since his parents separated, between January 2009 and September 2010.
The grandmother commenced proceedings under s.65C(ba) of the Family Law Act on 15th December 2001. The application was returnable on 7th March 2011.
The parties attended a Child Dispute Conference that same day. No agreement was reached. On that day, after an interim hearing, the Court ordered that the child’s name should be placed on the Airport Watch List maintained by the Australian Federal Police and made an order that the grandmother should be restrained from removing the child from the care of the mother and from the Sydney metropolitan area (Esmond & Irving[1]). Those orders remain in force.
[1] [2011] FMCAfam 217
Submissions
The grandmother submits that there is no risk that her proposal would deprive the child of having a meaningful relationship with his mother. His primary attachment is to his mother. She denies any allegations of violence towards any of her grandchildren.
The child is not spending any time with his paternal grandparents or members of his paternal extended family. The mother does not appear to be willing to facilitate or encourage any time with the paternal grandparents or extended family.
If the grandmother were to spend time with the child, the issues of separation from his mother would be minimal. If the orders proposed by the mother were to be made, the child would not have any relationship with his paternal extended family.
There are no practical difficulties and minimal expense involved as the parties live in close proximity to each other and the grandmother would be responsible for all drop off and collection of the child.
There is no issue about the mother’s capacity to care for the child, as the grandmother does not seek to change his living arrangements. The paternal grandparents have the capacity to care for young children, especially those with significant medical needs. The grandparents would converse with him in English.
The grandmother denies that she has obsessive compulsive disorder which causes her to hoard certain items. She also denies any intention of taking the child out of Australia and has already consented to an order placing his name on the airport watch list.
The mother and the paternal grandparents are of the same ethnicity and cultural background.
The grandmother has shown a great desire to maintain her relationship with the child.
There are no issues of violence insofar as they relate to the grandmother.
The orders sought are interim orders.
The mother submits that [X]’s relationship with her is of primary importance, given the lack of interest in the child demonstrated by his father. The grandparents are not persons who are “significant” to the “care, welfare and development” of the child as specified in paragraph 60B(2)(b) of the Family Law Act. The mother refers in her written submission to the decision of Benjamin J in Church & M. Overton & Anor[2], where his Honour said at [142]:
This is not about the needs of the grandfather; it is about the interests of the children. Their parents in exercising their overall responsibility to parent decided some 8 years ago that the grandfather should not be involved in their lives. This decision was not taken lightly and remains the parents’ approach.
[2] [2008] FamCA 953
The mother is concerned about the need to protect the child from physical and psychological harm and has in fact filed a Notice of Child Abuse.
The mother submits that the following matters are relevant to the primary considerations set out in s.60CC(2) of the Act:
a)The grandmother has denigrated the mother to the child by saying words to the effect of “By God almighty, may you bury your mother”;
b)The child is developing a strong and stable relationship with his stepfather, who now represents a father figure in the child’s life, a relationship which spending time with the grandparents would put at risk;
c)The child does not know the grandparents;
d)The grandmother has knowingly given the child foods to which he is allergic;
e)The grandmother has lit a match and touched it to the bare bottom of one of the child’s cousins in an attempt to toilet-train him;
f)The grandparents are too elderly to have the capacity to care for the child;[3]
g)The grandparents have not been forthright about their accommodation and have not disclosed that an additional person lives there;
h)The grandmother is a “hoarder”;
i)The grandmother has left other grandchildren alone to be supervised by a stranger while she was shopping;
j)The grandmother’s application is a “Trojan horse” that will lead to the child coming into contact with third parties, including his father;
k)The grandparents do not appreciate the need for stability in the child’s life; and
l)The grandparents are unfamiliar with the child’s medical and educational needs.
[3] The grandmother is aged 58
Therefore, the mother submits that it is not in the child’s best interests to spend time with his paternal grandparents.
In addition, the mother submits that:
a)The child at the age of three and a half is too young to express a view, although he is of above average intelligence;
b)The mother has always been the child’s primary carer and has never been away from her for more than a few hours, and certainly not overnight;
c)The child was only about 14 months old when his parents separated;
d)The child has had no physical contact with his father since the father left for Lebanon in April 2009;
e)In the two and a half years since the child’s parents separated, he has never spent time with his paternal grandfather;
f)The grandmother has only spent time with the child on about five occasions, most recently in September 2010;
g)The child is strongly bonded with his mother and has little or no attachment relationship with his grandparents;
h)The grandmother has denigrated the mother and her other daughter in law;
i)The mother is concerned that the grandmother will seek to undermine the child’s relationship with her and her new partner;
j)The mother is concerned that if the child is left alone with his grandparents, with whom he has little or no attachment relationship, he will suffer emotional distress;
k)The grandmother does not speak English and the child does not speak more than the odd word of Arabic;
l)The grandparents are currently caring for two of their other grandchildren, aged four and five, and the mother doubts that they have the capacity to care for another child;
m)The grandparents lack any insight into the confusion being caused to the child by having people coming into and out of his life as they please, such as his father;
n)The mother is concerned that the grandparents will in some way arrange to remove the child out of Australia and take him to Lebanon, from where they fear he might never return; and
o)The mother has been experiencing stress and anxiety and has developed chest pains and palpitations.
The mother also submits that if the Court were to permit the grandmother to spend time with the child, that time should be supervised. Again, she takes issue with the extensive time that the grandmother is seeking in her application, such as Father’s Day, birthdays and the first day of religious holidays.
In a Minute of Interim Orders, the mother seeks, primarily, that the application should be dismissed with an Order for costs on an indemnity basis. No explanation has been given as to why there should be an order for costs, let alone on an indemnity basis.
The Relevant Law
Section 60CA of the Family Law Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. The court determines what is in a child’s best interests by considering the matters set out in subsections 60CC (2) and (3).
I have done so, insofar as those matters are relevant.
When making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him (see s.61DA(1)). However, this is an application by a grandparent and the respondent is the child’s mother. In my view, equal shared parental responsibility is not a relevant consideration.
The Act specifically refers to grandparents in a number of places.
Subsection 65C(ba) provides that a parenting order in relation to a child may be applied for by “a grandparent of the child”.
Subsection 60B(2) has already been referred to in submissions. Paragraph 60B(2)(b) provides that:
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
…(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); …
Conclusions
It is a significant step for a Court to order, on an interim basis, without hearing or testing any evidence, that a child’s right under s.60B(2)(b) of the Act to spend time with and communicate on a regular basis with his grandmother should be removed. I am not satisfied that the evidence offered by the mother comes near establishing that such an order would be in this child’s best interests.
The mother makes a number of allegations about the grandmother, many of which she denies. It is not practicable to test this evidence at an interim hearing.
Whilst counsel for the mother has referred the Court to the decision of Benjamin J in Church & M. Overton & Anor[4], I am of the view that this decision can be distinguished on its facts. The facts of the matter before Benjamin J involved a lengthy period of estrangement between the grandfather and three of his daughters, where the evidence was that the grandfather had not seen the grandchildren at all over a period of over eight years. This is not the case here.
[4] supra
There are numerous authorities where the Courts have spoken positively about the benefits to children of having a relationship with extended family, particularly grandparents (see Bright & Bright v Bright & Mackley[5]).
[5] (1995) FLC 92-570
The mother appears to be visiting on the grandmother her antagonism toward the child’s father, who has left Australia and has had no communication with his son. The mother’s concerns about the grandmother apparently acting on behalf of the absent father have been increased by the grandmother’s application that the child should spend Father’s Day with her. That is an inappropriate application by the grandmother.
In my view, there should be orders that would provide for [X] to spend some limited time with his grandmother. I am not satisfied that the mother has established that it would not be in his best interests top spend any time with her. However, the time should be relatively limited at this stage, bearing in mind that the child is only three years of age. In my view, a period of three hours on alternate Sundays would be appropriate at this stage, except for Father’s Day.
I am not satisfied that the grandmother’s time with the child needs to be supervised. There is no evidence of an unacceptable risk.
For reasons that are not explained, the mother seeks an order that the grandmother should pay her costs of this application. Subsection 117(2) of the Act makes it clear that costs will only be awarded if the court is of the opinion that there are circumstances that justify making an order as to costs.
There is no evidence offered or any submission made as to why costs should be ordered on an indemnity basis.
Costs, when awarded, are usually awarded on a party and party basis. The circumstances in which the Court in the proper exercise of its discretion may depart from the normal practice of making an order for costs on a party and party basis are set out in the decision of Sheppard J in Colgate Palmolive Company & Anor v Cussons Pty Ltd[6] at 233:
The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis…
The circumstances of the case must be such as to warrant the Court in departing from the usual course…
…there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice.
[6] (1993) 46 FCR 225
There are no special or unusual features that would justify the Court in ordering costs on an indemnity basis. In fact, there does not appear to be any reason why the Court should make an order for costs at all. The application for costs on an indemnity basis will be dismissed.
As it appears that the application will proceed to a final hearing, the Court will order a Family Report to be prepared under the provisions of s. 62G of the Act.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 July 2011
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