Harmon and Anor and Meddowe

[2014] FamCA 1214

FAMILY COURT OF AUSTRALIA

HARMON AND ANOR & MEDDOWE [2014] FamCA 1214

FAMILY LAW – PARENTING – Spend Time with the Children – Grandparents seeking to spend time with Children in Country E – Where there has been an agreement in the past – Where there is no longer agreement – Where the mother of the children is recently deceased

Family Law Act

APPLICANTS: Mr and Ms Harmon

RESPONDENT: Mr Meddowe

FILE NUMBER: SYC 2188 of 2011

DATE DELIVERED: 23 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE:

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hauptmann

SOLICITOR FOR THE RESPONDENT: Ms Grainger

Orders

1. The application in a case filed by Mr and Ms Horvarth on 22 December 2014 is dismissed. 

2. The order for costs sought by the applicant is dismissed. 

3. The order for costs sought by the respondent is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harmon and Anor & Meddowe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2188 of 2011

Mr and Ms Harmon

Applicant

And

Mr Meddowe

Respondent

REASONS FOR JUDGMENT

1. This is an application by the maternal grandparents for the subject children to spend time with the applicants in Country E over Christmas, as had previously been agreed between the parties.

2. The applicants are the parents and personal representatives of the deceased wife in the remaining property proceedings which are still to be concluded.  The respondent wife died on 24 September 2014.  The applicants live in City D, Country E.  On 31 March 2014 orders were made by consent in relation to the parenting of the twin children of the husband and wife, B and C, who were born in 2006. 

3. The parenting orders provide that the children spend time with the applicants during the long Christmas vacation at the end of the Australian 2015 school year.  The order provided for the children to spend one week per annum during the other school holidays in Australia with the applicants.  There were further orders which provided for the applicants to spend other times with the children, as may be agreed, within Australia or otherwise. 

4. The evidence establishes that at the instigation of the father, following the death of the wife, agreement was reached for the father and his partner to travel with the children to City D between 7 and 22 January 2015 so that the children might spend time with the applicants.  To that end the father purchased air tickets for himself and his partner and the applicants purchased tickets for the children. 

5. Following that arrangement being made other interaction between the parties has become less cordial.  It seemed to start with the husband making what, on the face of it, seemed like an innocuous and reasonable request for a copy of the wife’s death certificate in order that he might claim on insurance relative to flights to Tasmania which he cancelled upon being informed of the mother’s demise and consequently needing to take over care of the children.  That request has been denied and correspondence emanating from the applicant’s solicitors requesting the husband advise “the legal basis” for his request for a copy of the wife’s death certificate emanated.  That clearly has disturbed the husband in the proceedings. 

6. The correspondence between the parties directly and through their solicitors illustrates a cascading depreciation of the relationship between the father and the applicants.  This seems to be largely about a property dispute, however, it is also about making arrangements for the children to have Skype communication with the applicants.  All this has built to a point where the father is no longer prepared to travel to Country E with the children in January this year and does not consent to them travelling alone or at all at this time.  Some of this relates to the children’s ability to cope with a lengthy international flight, however, there seems to also be exasperation on his part about what started as a good will offer souring over a short time. 

7. The children are now caught in the conflict.  This is very sad given they have recently lost their mother and could be expected to still be coming to grips with that circumstance together with adapting to a new school and now living full time with their father and his partner.  This is a time where these children need the most support from those that are able to give it and it seems that, at one level at least, that is not occurring. 

8. The orders do not provide for an unaccompanied trip for the children to Country E until the end of 2015 or the beginning of 2016.  The orders do provide for the parties being able to agree about additional time.  They did agree that the husband and his partner would accompany the children to Country E on about 7 January 2015.  The husband is no longer prepared to accompany the children.  There was never an agreement for the children to fly unaccompanied to Country E before the end of 2015. 

9. In all the circumstances I conclude the orders made on 31 March 2014 do not provide for unaccompanied travel at this time and there is insufficient evidence to satisfy me that the children’s best interest would be accommodated at this time by making the orders sought by the applicants.  In those circumstances I will dismiss the application of the applicants. 

10. This is a parenting matter.  I am not convinced by either party’s submissions, to the effect they have made out a case for costs.  Any case for costs on one side is met by a case for costs on the other side.  In other words there are arguments on each party’s side as to why a costs order might be made in their favour pursuant to section 117 of the Act.  However, in my view, those arguments equalise each other and in those circumstances I would not be prepared to make a costs order in favour of either party.  In all those circumstances I make the orders as previously announced by me. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 23 December 2014

Associate:  S. Hawkins

Date:  23 December 2014