HYLAND & HYLAND - [2019] FCCA 1691

FEDERAL CIRCUIT COURT OF AUSTRALIA

HYLAND & HYLAND

[2019] FCCA 1691

Catchwords:
FAMILY LAW – Parenting – where the paternal grandmother seeks to be able to spend time with her grandchildren (11 and 9) – where the children have never been introduced to the paternal grandmother – parents remain happily married but have been estranged from the paternal grandmother since prior to the children’s birth – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 60(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(d), 60CC(3)(d), 60CC(3)(e), 60CC(3(g), 60CC(3)(i). 61C, 65C(ba), 117(1)..

Cases cited:

Potts & Bims and Ors [2007] FamCA 394

Kitsannis & Netopoulis & Anor [2010] FamCAFC 214

Aldridge & Keaton (2009) FLC 93-421

Applicant:

MS HYLAND

Respondent:

MR G HYLAND & MS E HYLAND

File Number:

NCC 3757 of 2017

Judgment of:

Judge Betts

Hearing date:

20 May 2019

Date of Last Submission:

20 May 2019

Delivered at:

Newcastle

Delivered on:

26 June 2019

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Self-represented

ORDERS

That the paternal grandmother’s application for parenting orders be dismissed.
That if any party intends to apply for costs:
(a)Within twenty-one (21) days, the party is to file, and serve the other party with, written submissions in support of such application;
(b)The other party is to file and serve written submissions in response within forty-two (42) days;
(c)The written submissions are to advise whether the parties consent to the costs application being determined in chambers, or whether they require that the proceedings be re-listed for further oral argument.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3757 of 2017

MS HYLAND

Applicant

And

MR G HYLAND & MS E HYLAND

Respondents

REASONS FOR JUDGMENT

Background:

In these proceedings, the applicant paternal grandmother seeks parenting orders which will facilitate her having a relationship with two (2) of her grandchildren - [X] aged eleven (11) and [Y] aged seven (7).
Her application is vehemently opposed by the respondent parents, who remain happily married and who are otherwise raising the children in a healthy family environment. The unfortunate background to this dispute is that the parents had a significant “falling out” with the paternal grandmother back in 2007, following which they have since made a conscious and sustained decision not to involve her in their lives, nor to permit her to have any form of involvement with their children.
The falling out has extended to the father’s brother Mr S Hyland (“the paternal uncle”), his wife Ms H Hyland (“the paternal aunt”) and their two (2) children [C] and [D] who are of similar age to the children of these proceedings (“the paternal cousins”).
Despite the fact that these family members all live in close proximity in a small regional area, the children have never been introduced to the…

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: [2019] FCCA 1691
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the matter of *Hyland & Hyland*, the paternal grandmother sought parenting orders to spend time with her grandchildren, aged 11 and 9. The children had never met their paternal grandmother, and the estrangement between the parents and the paternal grandmother predated the children's birth. The parents remained married and were not in dispute with each other, but were estranged from the paternal grandmother.

The central legal issue before Judge Betts was whether it was in the best interests of the children for the paternal grandmother to have contact with them, given the long-standing estrangement and the fact that the children had no existing relationship with her. The court was required to consider the impact of any such orders on the children's welfare.

Judge Betts dismissed the paternal grandmother's application. The reasoning focused on the paramount consideration of the children's best interests. The court found that, in the absence of any pre-existing relationship and given the significant period of estrangement, ordering time between the grandmother and the children would not be in their best interests. The court noted that the children had not expressed any desire to meet their paternal grandmother and that imposing such contact could be detrimental to their welfare.

The paternal grandmother's application for parenting orders was dismissed. The orders also provided a framework for any potential costs application, requiring written submissions within specified timeframes and addressing whether the application should be determined in chambers or require further oral argument.

Orders

Orders of the court

That the paternal grandmother’s application for parenting orders be dismissed.

That if any party intends to apply for costs:

(a) Within twenty-one (21) days, the party is to file, and serve the other party with, written submissions in support of such application;

(b) The other party is to file and serve written submissions in response within forty-two (42) days;

(c) The written submissions are to advise whether the parties consent to the costs application being determined in chambers, or whether they require that the proceedings be re-listed for further oral argument.

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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