Garrett and Garrett and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARRETT & GARRETT & ANOR

[2013] FCCA 1811

Catchwords:
FAMILY LAW – Costs sought following discontinuance of proceedings concerning children prior to matter being heard at trial – applicant in proceedings children’s paternal grandmother – respondents in proceedings children’s parents – grandmother sought to spend regular time with children – application vehemently opposed by parents on basis grandmother potentially corrosive moral influence in children’s lives and alleged to have been abusive – indemnity costs sought – matters to be considered – what is just.

Legislation:

Family Law Act 1975, ss.60B;117

Federal Circuit Court Rules: rr.21.02; 21.10

Kohan & Kohan (1993) FLC 92-340
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Bright v Bright (1995) FLC 92-570

Applicant:

MS A GARRETT

First Respondent:

MR GARRETT

Second Respondent:

MS Z GARRETT

File Number:

ADC 476 of 2013

Judgment of:

Judge Brown

Hearing date:

25 October 2013

Date of Last Submission:

25 October 2013

Delivered at:

Adelaide

Delivered on:

8 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Boehm

Solicitors for the Applicant:

Thomas Rymill

Counsel for the Respondents:

Mr Bersee

Solicitors for the Respondents:

Herman Bersee & Co

ORDERS

The application for costs filed on 30 August 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 476 of 2013

MS A GARRETT

Applicant

And

MR GARRETT

First Respondent

MS Z GARRETT

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the issue of costs, following the discontinuance of an application before the court in respect of children.
Ms A Garrett is the paternal grandmother of [X] born [in] 2006 and [Y] born [in] 2008. She is the respondent to the application for costs. Her son and the children’s father is Mr Garrett.
[X] and [Y] live with their parents, Mr Garrett and Ms Z Garrett, on a farm near [omitted], in the South East of South Australia. Mr Garrett is a farmer. Ms Z Garrett is a [occupation omitted]. They are the applicants for costs.
On 12 February 2013, Ms A Garrett (hereinafter referred to as “the grandmother”) commenced proceedings, in this court, seeking to spend modest but regular time with the two children. She sought a regular afternoon with them, after school, and for four hours every fourth Sunday, as well as on special occasions, such as Christmas and their birthdays.
On 13 June 2013, Mr and Ms Garrett (hereinafter referred to as “the father” and “the mother” respectively or “the parents” collectively) responded. They sought the dismissal of the grandmother’s application. Each party had filed affidavit material setting out their respective positions, in respect of the issue of the grandmother spending time with [X] and [Y].
The first return date of the matter was 17 June 2013, in the sittings of the court to Mount Gambier. The parties were each represented by their lawyers – the grandmother by Mr Bersee; the father and mother by Mr Rymill.
At this stage, it became apparent that there was no scope for compromise. The father and mother were vehemently opposed to [X] and [Y] spending any time, whatsoever, with the grandmother.
In these circumstances, I determined that the matter should be fixed for final hearing. The final hearing date allocated was 24 October 2013. In order to assist the court in determining the matter, I also ordered that a family report be prepared pursuant to the provisions of section 62G of the Family Law Act.
The purpose of the report was to examine the nature of [X] and [Y]’s relationship with the grandmother and, in particular, to determine whether it was likely to be in the children’s best interests to spend time with their grandmother, given the conflict existing between the parties concerned.
The family report was never completed. On 2 August 2013, the grandmother filed a notice discontinuing her application. On 26 August 2013, the court formerly dismissed both her application and the parent’s response. Accordingly both the family report and the scheduled hearing became otiose.
On 30 August 2013, the father and mother filed an application in a case in which they seek that the grandmother should pay their costs. Although the application does not specifically say so, it is their position that costs should be calculated on an indemnity basis. The sum sought is $23,300.00.
The grandmother has not filed a formal response to the application, but she has filed an affidavit setting out her position. This affidavit was filed on 11 October 2013. She seeks the dismissal of the costs application. It is implicit in her position that she considers it just that each party should bear their own costs in the discontinued proceedings relating to [X] and [Y].
These reasons for judgment are directed to resolving this issue of costs between the parties concerned. An examination of the relevant court file indicates that neither party filed any affidavit material in anticipation of the trial originally scheduled for October of this year and has not taken any formal step in respect of it.

Background

The grandmother and the parents of [X] and [Y] did not provide sworn oral evidence in the proceedings before the court and so neither party has been subject to a formal process of cross-examination.
Accordingly, the only evidence before the court is in the form of affidavits from each of the parties concerned and others associated with them. This evidence has not been subject to scrutiny as to its overall credibility. As such, the court is not in a position to say it prefers one party’s evidence over that of the other party’s evidence, particularly in regards to issues concerning [X] and [Y]’s best interests.
However, it would seem to be the case that the general background to the issues in dispute between the parties is not greatly controversial. It is common ground that there is a deep rift, in the children’s family, as a consequence of the circumstances surrounding the separation and subsequent matrimonial property settlement occurring between the grandmother and her former husband, Mr G, who is the paternal grandfather of [X] and [Y].
The grandmother and Mr G were married [in] 1976. Besides Mr Garrett, they have two other adult children – Mr M and Ms L, aged 36 and 39 years respectively. Mr Garrett is their youngest child. He is 29 years old.
In addition to [X] and [Y], the grandmother has five other grandchildren. They are [name omitted] aged eleven, [name omitted] aged nine, and [name omitted] aged eight, who are Mr M’s children; and [name omitted] aged six and [name omitted] aged four, who are Ms L’s children.
The grandmother and Mr G finally separated on 22 May 2007, after a marriage of approximately thirty years. During their marriage, they were involved in a farming partnership operated from a land holding of approximately 3,600 acres. Some of the acreage had been inherited by Mr G from his own father. Prior to the end of the grandmother’s marriage, both the father and Mr M were involved in the farming enterprise with Mr G.
The grandmother estimates the value of the farming enterprise at between $10,000,000.00 and $12,000,000.00. It is the grandmother’s assertion that she made significant contributions, particularly to the welfare of the family concerned, during the course of her marriage, with Mr G.
Matrimonial property proceedings between the grandmother and Mr G were protracted and acrimonious. They also affected the financial interests of the father and mother and indeed Mr M. Ultimately, the proceedings were resolved by way of a payment of approximately $3,000,000.00 to the grandmother.
Following the settlement of these proceedings, the father and Mr G continued to farm together. Mr M elected to leave the family farming enterprise and now farms on 600 acres of the former family farm, independently of his brother and father. His current land holding was excised from the former family farm.
What were the financial ramifications of the matrimonial property settlement is unclear to me. However, the father has deposed that a portion of the family farm was sold in order to finance the payment to the grandmother.
It is however clear that the proceedings have resulted in the grandmother and the father being estranged from one another. In addition, it does not seem to be an unreasonable inference that the overall profitability of the farm has been diminished by both the sale of some of the land involved and the transfer of a portion of it to Mr M.
It is the grandmother’s position that she currently has a good relationship with her daughter Ms L and her children, whom she sees regularly. In addition, the grandmother deposes that she has repaired her relationship with Mr M, damaged by the proceedings involving the family farm and now sees his children regularly, particularly since

Mr M has commenced farming on his own account.
This significant family schism forms the background to the current proceedings, which arose when the grandmother brought an application to spend time with [X] and [Y]. It is the grandmother’s position that she has not seen either [X] or [Y] since September of 2011, when she came into contact with them, by chance, outside their primary school, when she was collecting Mr M’s children. It is her case that she was previously close to both children and indeed to their parents.

The grandmother’s position at the instigation of proceedings

The grandmother deposed that she has not spoken to the parents for over two and a half years. She asserts that the father has closely aligned herself with her former husband and, as a consequence, is bitterly disposed towards her.
She asserts that this state of affairs provides the motivation for the parents to withhold [X] and [Y] from spending time with her. She further asserts that, when she spent a brief period with [X], at his school, in September of 2011, the child enjoyed the experience.
In her affidavit, filed on 12 February 2013, the grandmother deposed as to her view that the children would benefit from spending time with her, including in the company of their various cousins.
The grandmother’s solicitor, Mr Bersee, wrote to the parent’s solicitors in October of 2011 inquiring whether there might be “some amicable arrangement [arrived upon to enable the children concerned] to have the benefit of having a growing and enduring relationship with their grandmother.”
This letter drew a somewhat acerbic response from Mr Rymill, the parents’ solicitors, in which it was asserted that the grandmother had unduly prolonged the previous property proceedings because of her unreasonable stance in them.
Ultimately, after the exchange of further correspondence, Mr Rymill wrote to Mr Bersee in the following terms:
“I have now detailed instructions from my clients regarding this issue, and I have come to the conclusion that my clients have strong reasons to refuse your client’s request for Child Contact.
It is patent that the children will not benefit by forming a relationship with their grandmother during their formative years. Indeed, any relationship may be detrimental to them, because of; - the confusion that the two different family environments will instil in them; the risk of physical injury through benign neglect; and the risk of psychological confusion and possible disturbance.
My clients wish to raise their children in an ethical and moral environment, and have serious fear that your client’s approach to life is distinctly different.
I have reviewed the history given by my clients, and it is apparent that your client lacks veracity; is manipulative and scheming in her social interactions; is likely to be a sub-standard carer, particularly because of her various addictive behaviours; and will introduce the children to an environment that includes Ms Garrett’s current beau and his family. (His family have a recorded history of anti-social behaviour, and have frequently displayed aggressive or hostile behaviour towards my clients and their family).
Having reviewed the history provided by my clients, I can now better understand the vacillations and reneging that your client made whilst negotiating a division of property with Mr G.
If your client manages to reform her ways, such as avoiding association with people of ill-repute; over-throwing her addictive behaviours; and adhering to moral standards and ethical principles, then there might well be the possibility of some reconciliation between our respective clients, leading to greater inter-action between them (and hence contact between your client on the other hand, and [X] and [Y] on the other).
Likewise, once my client’s children have passed through their formative years, there might be the possibility for contact between them and Ms Garrett.
Your client will probably do whatever she thinks is in her best interests. If that leads her to taking action for an Order for Child Contact, then that Application may be resisted, and that means my clients will need to allege the matters referred to above, and prove their allegations. They intend to do so, if that is necessary.”
The tone of Mr Rymill’s letter is certainly aggressive and uncompromising. From the parents’ perspective it is said to be indicative that no quarter would be given in any proceedings subsequently arising and the grandmother proceeded with them at her own peril.
In the grandmother’s affidavit, in support of her application to spend time with [X] and [Y], she asserted her view that her relationship with her two sons had become difficult because of pressure applied by their father, who was aggrieved that she had commenced the property proceedings.
The father acknowledged that his relationship with the grandmother had become significantly strained, whilst the property settlement between the grandmother and Mr G was being negotiated. However he denied that he had ever been subject to any emotional pressure from his father.

The parents’ position following the instigation of proceedings

The father responded to the grandmother’s affidavit with a detailed affidavit. The mother, in support, deposed as to her view that the contents of her husband’s affidavit were true. The father has nothing of a positive nature to say about the grandmother. It is his view that the grandmother has no affection for him and was malignly motivated in the earlier property proceedings.
More specifically, he asserts that the grandmother subjected both him, whilst he was a child, and her grandchildren, including [X] and [Y], to various forms of abuse. This abuse began, in his case, when he was six years of age and allegedly involved him being physically disciplined, by his mother, with a large wooden spoon.
In addition, the father asserts that the grandmother has drug and alcohol abuse issues and smokes cigarettes. It is alleged that she drank to excess, at a twenty-first birthday, in October of 2005. In addition it is alleged that she was banned from a hotel in December of 2011.
The father also characterises the grandmother as a dishonest person, alleging that she has engaged in shoplifting; has a propensity to alter dishonestly the price tags on clothing items in department stores to secure financial advantage; and has defrauded the scheme to subsidise the travel expenses of rural patients of the public health system.
The father also alleges that the grandmother has an unsavoury de facto partner. Criticisms are also made about the character of the de facto partner’s family and children. Mr Garrett also alleges that his mother has an addiction to poker machines. As such he asserts that the grandmother has the potential to be an unsavoury moral influence on the children.
It is not possible for me to resolve the truth or otherwise of the many allegations made by Mr Garrett against his own mother. However, in my view, it would be extraordinary if the grandmother was not both hurt and insulted by the harping litany of her alleged failures, as both a parent and a citizen, detailed over many years. I have no doubt that the affidavit was intended to wound.
Mr Garrett chose to exhibit a photograph of his mother with a dildo. He obtained this photograph from facebook, where it was posted by a relative of the grandmother. In my view, the photograph has little forensic purpose and was included in the father’s affidavit material solely to embarrass and humiliate the grandmother.

The affidavit material filed in respect of the cost’s application

The grandmother discontinued her application on 2 August 2013. The application for costs was filed on 30 August 2013. In support of the application, the father deposed that he had incurred costs as a consequence of the application of the grandmother being fixed for hearing in October of 2013. He deposed as follows:
“… we set to work to gather in and prepare evidence for trial. Each of us personally spoke to a number of people to take informal statements from them, and where possible to obtain their agreement to attend in court and give evidence.
We believe our solicitors, Thomas Rymill, and his staff, made contact with a number of people, again for the purpose of seeking the evidence to be presented to the court.
We say that our position has been clear since April 2011, and well before the applicant filed her application. When she filed her application she knew, or should have known, that we intended to strongly resist that application.
The health of each of us has suffered as a result of the worry and anxiety caused by the applicant’s demand for contact with the children. This has been compounded by the threatening behavior from the family of the applicant’s domestic partner.
We have been put to considerable cost, concern, and worry, by reason of Ms A Garrett’s application, and preparing to resist it.”[1]
[1] See affidavit of Mr Garrett filed 30 August 2013 at paragraphs 12-16
As previously indicated, the court file indicates that no formal steps have been taken, by either party, in respect of the October hearing. No particulars have been provided in respect of the witnesses allegedly interviewed.
As at the end of August, Mr Garrett estimated the costs incurred by him to be in the region of $16,000.00. No formal accounts have been provided in respect of this figure nor has any reference been made to the applicable court scale or other rules of court. No justification has been provided in respect of the current sum sought for costs.
The grandmother responded to the application for costs, in an affidavit filed by her on 11 October 2013. In respect of the allegations made in respect of her character in her son’s affidavit material, she deposed as follows:
“… in so far as these affidavits attempt to denigrate me as a mother and grandmother that are completely untrue. I was shocked to read Mr Garrett’s first affidavit and the extent to which my own son whom I love was prepared to go to falsely vilify me. It is clear from this affidavit however that Mr Garrett is of the view that my need for a half reasonable property settlement after separating from his father was a direct challenge to what he regarded as his right to the family farm where he worked part time with his brother Mr M and my husband.”[2]
[2] See affidavit of Ms A Garrett filed 11 October 2013 at paragraph 1
In respect of her decision to discontinue the proceedings, the grandmother deposed as follows:
“I discontinued my application after reading Mr Garrett’s initial responding affidavit false and distorted as its contents are it is obvious that Mr Garrett and Ms Z Garrett and [sic] deeply hostile towards me. If I were to be successful in being able to spend time with [X] and [Y] it is evident that they will only become further exposed to their parents negative and hostile attitudes towards me. I simply do not wish to expose them to this more than they are going to be already.[3]
[3] Ibid at paragraph 16

As I have already pointed out, I am unable to resolve the truth or otherwise of the allegations made by the father against his mother. However, in my view, I am able to conclude, on the basis of the untested affidavit material, that there is an extreme level of hostility between the parties, which emanates largely from Mr Garrett.
The grandmother has filed affidavits from Mr M and Ms L. They both describe her as having been an excellent mother to them and a person whom they regard as a positive influence in the lives of their respective children.
In all these circumstances, I am not in a position to reject the grandmother’s contention that it would be potentially emotionally deleterious, for [X] and [Y], if she was to be successful in her application to spend time with the children because of the parents extraordinary level of hostility for her.
Accordingly, I am not in a position to reject the grandmother’s contention that she withdrew her application because of her concern for the children in the case rather than because she feared for her own reputation or believed that her application was doomed to failure because of the nature of the allegations made against her.
Essentially it is the grandmother’s position that she withdrew the case for altruistic reasons, centred on her consideration of the children’s best interests, rather than for any tactical motivation or because she accepted that her application was doomed to failure.

The applicable legal principles

If the grandmother’s application had proceeded to trial, it would have been determined according to the provisions contained in Part VII of the Family Law Act 1975. This is the part of the Act dealing with children. The best interests of the children concerned, in any application before the court, are the paramount or most important consideration in all such cases.
Accordingly, the proceedings, between the grandmother on the one hand and the parents on the other, are not strictly adversarial in nature. Rather, they are to be considered an inquiry into how the best interests of [X] and [Y] would be best served.
This inquiry would have been informed by a consideration of the objects and principles underlining Part VII of the Act. The objects of Part VII and the principles underlying it emphasise the overall need to protect children from harm as well as ensuring, commensurate with other considerations relating to their best interests, that they have a meaningful level of relationship with not only their parents, but also other relatives who have the potential to be significant to them.
In this context, the underlying principles of the children’s part of the Family Law Act make specific reference to grandparents. Section 60B(2)(b) reads as follows:
“(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);”
Given the discontinuance of the grandmother’s application, the court will now not be called upon to determine what benefits, if any, [X] and [Y] would have derived from spending time with their grandmother. The relevant legislation however speaks, in generic terms, of a child’s right to spend time with a grandparent provided that such time will not otherwise jeopardise the wellbeing of the child concerned.
Again, I emphasise that, if the case had proceeded to hearing, it would have been concerned with [X] and [Y]’s rights in this regard. The case arising would not have solely been an adversarial hearing into the nature of the parties’ previous relationship with one another nor an inquiry into the nature of their respective characters or any past failings.
The normal rule in civil proceedings is that costs follow the event. Essentially, the unsuccessful party pays the cost of the party, who has succeeded. It is the parents’ position that, as the grandmother has abandoned her application, as a result of the pressure applied to her, following the communication of their unequivocal position regarding her potential access to the children, she should be deemed to have been unsuccessful.
This is not the position in family law proceedings. Rather, the starting point is that each party should bear his or her own costs. The rationale for this rule is that the subject matter for family law proceedings is intensely private, dealing as it does with arrangements for the care of children and the division of property.
Necessarily these issues, often highly controversial, frequently precipitate strong emotions in the parties concerned. In addition, the law pertaining to such decisions is discretionary, based on the court’s assessment of very many factors.
Accordingly, what will be the ultimate outcome of family law proceedings may be difficult to predict with certainty. Inevitably, in such circumstances, the parties concerned will each be able to present valid and compelling reasons as to why they have proceeded. In children’s cases, these reasons invariably relate to issues centred on filial affection. The love of a child (or grandchild) is one of the most powerful of all human emotions.
In short, the subject matter of the court, in children’s proceedings, is different in character and quality from other species of civil litigation, which does not always have the same emotional quotient.
Essentially, in children’s cases, the parties concerned are usually each able to present valid proposals as to how a difficult and controversial situation should be resolved and the strong feelings inevitably created by the situation concerned may stand in the way of easy compromise.
Considerations such as these make it potentially unjust for there to be any rule that costs should be routinely awarded to a successful party. However, notwithstanding these considerations, the court retains a discretion to award costs in appropriate circumstances.
Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
Section 117(2A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:
“In making an order for costs in a proceeding the Court may:
(a) set the amount of costs; or
(b) set the method by which the costs be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of costs which may be before the proceedings is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
As previously indicated, the father and mother seek an award of costs, in their favour, in an amount of approximately $23,000.00. This sum has not been calculated according to any of the bases set out in Rule 21.10. Certainly there has been no reference to the fixed event schedule of costs created by schedule 1 of the Rules.
The court’s discretion to make an order of costs is a wide one but it is one which must be exercised carefully and judicially. Orders for indemnity costs are extraordinary or exceptional. In Kohan & Kohan[4] the Full Court of the Family Court characterised an order for indemnity costs as “being a very great departure from the normal standard.”
[4] See Kohan & Kohan (1993) FLC 92-340 at 79,614
Accordingly, the Full Court said “the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.”
In Colgate-Palmolive v Cussons Pty Ltd[5] it was held that indemnity costs are not commonly ordered and will only be ordered if the Court is satisfied that there is “some special or unusual feature of the case to justify the Court in departing from the ordinary practice” of ordering the costs be paid on a party and party basis.
[5] See Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
There is no closed category of cases in which indemnity costs might appropriately be ordered, but in Colgate Palmolive v Cussons Pty Ltd, the Court said that the kinds of situation in which indemnity costs might be considered were where a litigant had:
·commenced or continued an action knowing it to have no chance of success;
·made false or irrelevant allegations of fraud;
·made groundless allegations which prolong a case; and
·imprudently refused an offer to compromise.

Conclusions

Given the principles underlying Part VII of the Family Law Act, particularly the right of a child to have some form of relationship with a grandparent, I do not think that it can be said the grandmother commenced the proceedings in question knowing she had no chance of success, regardless of the acrimony of the allegations made against her. Regrettably such bitter allegations form the grist of many applications, which come before the court.
In this case, it cannot be said that the grandmother has made groundless allegations against either of the parties. To the contrary, it has been she who has been the subject of serious allegations of all sorts of character and parental failure over many years. In my view, there are no unusual features of the current case to justify an award of indemnity costs.
I now turn to consider whether there are any factors, arising pursuant to the criteria contained in section 117(2A) to justify a departure from the normal rule that parties in family law proceedings should bear their own costs.
a) Financial circumstances of the parties
I have not been provided with any detailed evidence regarding the financial circumstances of each of the parties, particularly what is their respective level of recurrent income. In these circumstances, I do not consider that I can conclude merely from the fact that the grandmother secured a significant property settlement from her former husband, she is in a superior financial position to the father and mother.
b) Receipt of legal aid
This is not a relevant consideration
c) Conduct of the parties
The specific sub-section directs the court to have regard to the conduct to the parties in respect of the management of the proceedings themselves. In this case, the grandmother discontinued the proceedings shortly following their instigation and a significant period of time prior to the date scheduled for their final hearing.
In my view, it cannot be said that she unduly prolonged the proceedings. In addition, given the structure of the relevant provisions of the Act, it cannot be said that her application was inherently unmeritorious and could obviously had no standing with the court.
She was and remains the children’s grandmother. The Act gives her specific standing to bring an application to spend time with [X] and [Y]. Her application was moderate in tone and the time sought with the children was not extraordinary in its bounds.
d) Failure to comply with previous orders
This is not a relevant consideration.
e) Party wholly unsuccessful
The parents would categorise the grandmother as being wholly unsuccessful in her application. At one level, this is so. The grandmother has not achieved her objective of being able to spend time with either [X] or [Y].
However, at this juncture, I am not able to dismiss the grandmother’s contention that she dismissed her application because of her desire to spare the children from the consequences of the bitter relationship between her and the children’s parents. Essentially, I am not in a position to dismiss the grandmother’s assertion that she withdrew her application for unselfish reasons rather than considerations relative to its prospects of success or otherwise.
In all these circumstances, I believe it to be simplistic to consider the case in terms of who has been successful and who has not been so. Rather, I consider the case to be a sad and perplexing one, given the rift between mother and son.
f) Offers to settle
This is not a relevant consideration.
g) Other considerations
The applicable legislation speaks of the right a child has to interact regularly with significant relatives, specifically identifying grandparents in this regard. Grandparents have the potential to be very important to children. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[6]
[6] See Bright v Bright (1995) FLC 92-570 at 81,658
The dispute between Mr Garrett and Ms Z Garrett, on the one hand, and Ms A Garrett, on the other is not [X] and [Y]’s dispute. As children, they have an entitlement to know their wider family history and to be provided with information about their forebears. Grandparents have the potential to confer different benefits on their grandchildren to those provided by the parents of the children concerned.
In enacting the principles contained in section 60B(2)(b) the Commonwealth legislature has recognised such considerations. As such, in my view, it would not be in the public interests if grandparents were easily swayed from bringing applications to interact with their grandchildren.
For all these reasons, I have come to the conclusion that the parent’s application for costs should be dismissed. For those reasons, the orders of the court will be set out at the commencement of these reasons for judgment.

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 8 November 2013

[2013] FCCA 1811

8 November 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Standing