Kantner & Salzer and Henderson - [2009] FMCAfam 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANTNER & SALZER and HENDERSON

[2009] FMCAfam 342

FAMILY LAW – Children – best interests – family violence.
FAMILY LAW – Children – grandparents.
FAMILY LAW – Application to vary orders – Rice & Asplund.

Family Law Act 1975, s.60CC, Part VII, ss.60CC(2)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(f), 60CC(3)(g)
Federal Magistrates Act 1999, s.17A

Gotch & Gotch [2009] FamCAFC 3
Miller & Harrington [2008] FamCAFC 150; (2008) FLC ¶93-383; (2008) 220 FLR 300; (2008) 39 Fam LR 654
Rice & Asplund (1979) FLC ¶90-725; (1978) 6 Fam LR 570
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; (1993)11 ALR 545; (1993) 67 ALJR 886

Applicant:

MS KANTNER

First Respondent:

MS SALZER

Second Respondent:

MR HENDERSON

File Number:

MLC 5593 of 2008

Judgment of:

Riethmuller FM

Hearing date:

5 March 2009

Date of Last Submission:

5 March 2009

Delivered at:

Melbourne

Delivered on:

20 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Heinz & Partners

Counsel for the First Respondent:

Mr Curtain

Solicitors for the First Respondent:

Sarah Lia

Counsel for the Second Respondent:

No appearance by or on behalf of the Second Respondent

ORDERS

The application filed 20 June 2008 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Melbourne

MLC 5593 of 2008

MS KANTNER

Applicant

And

MS SALZER

First Respondent

MR HENDERSON

Second Respondent

REASONS FOR JUDGMENT

The applicant is the paternal grandmother of [X] born in 2005. Pursuant to orders made by Federal Magistrate Walters on 7 May 2007 in proceedings between the applicant, the mother and an Independent Children’s Lawyer, the grandmother was permitted to communicate with the child by means of ‘cards, letters and gifts not more frequently than once per month’.
The orders of 7 May 2007 also provided for the mother to attend upon a counsellor nominated by the Independent Children’s Lawyer for the purpose of non-reportable therapeutic counselling and support with respect to the issues arising out of the proceedings. The Independent Children’s Lawyer was also permitted to provide affidavit material and professional reports in relation to the proceedings to the counsellor prior to counselling commencing.
On 23 May 2008, the applicant applied in the Magistrates Court of Victoria at Ballarat for orders discharging Federal Magistrate Walters’ orders and seeking orders for personal contact with the child at the Ballarat Contact Service initially for 2 hours per fortnight but increasing to one weekend per month, and for the mother to inform the paternal grandmother as to her residential address and telephone number.
The respondent asks that the application be dismissed, relying upon Rice and Asplund (1979) FLC ¶90-725.

Background

The applicant grandmother was born in 1961 and is now 47 years of age. The father of the child was born in 1979 and is now 29…

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.

Continue reading Kantner & Salzer and Henderson

Details

AGLC: Kantner & Salzer and Henderson [2009] FMCAfam 342
Case: [2009] FMCAfam 342
Decision Date: 20 April 2009

CaseChat Overview and Summary

Kantner & Salzer, represented by the mother, and Henderson, represented by the paternal grandmother, appeared before the Family Court of Australia in 2008. The primary dispute was over the right of a child to have contact with his paternal grandmother, with the mother opposing such contact due to concerns about the grandmother’s reliability and the potential exposure of the child to violence and abuse. The court was tasked with determining whether the child’s right to access his grandmother, as stipulated by the Family Law Act 1975, should be upheld despite the mother’s objections.

The central legal issue before the court was the interpretation and application of the child's right to access a grandparent under the Family Law Act 1975, particularly considering the child's age and the prevailing family dynamics. The court had to balance the statutory right of the child to have contact with the paternal grandmother against the mother's concerns about the grandmother's unreliability and the potential risk to the child's safety and well-being. The court also needed to assess whether the current family tensions would adversely affect the child's ability to benefit from such access.

In delivering the decision, the court noted the statutory right of the child to have contact with his paternal grandmother, as outlined in the Family Law Act 1975. However, the court also considered the child's age and the potential impact of the existing family tensions on the child's ability to benefit from such access. The psychologist's assessment, which highlighted the mother's distrust of the grandmother and concerns about the child's safety, was taken into account. The court concluded that the child, being only two years old, was unlikely to understand or benefit from the right to access his grandmother under the current circumstances. The court found that the existing family tensions and the mother's concerns were sufficiently significant to warrant the dismissal of the grandmother's application for access.

The court ordered that the application filed by the grandmother on 20 June 2008 be dismissed, recognising the importance of the child's safety and the mother's concerns about the potential risks associated with the grandmother's access.

Orders

Orders of the court

The application filed 20 June 2008 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the 30 April 2007, the same psychologist undertook an assessment of the mother, stating Summary and Conclusions:[The mother] answered all questions put to her fully. In doing so she portrayed a relationship with [the father] that, while initially relatively uneventful, became increasingly violent. Despite this, she attempted to save the relationship. After the couple returned from Queensland to Victoria, they agreed to live with [the mother’s] parents until after the baby was born. In addition, [the mother] stipulated that if during this time [the father] left, then she would not continue with the relationship. After he left her parents’ house, [the father] became increasingly violent, resulting in the incident on 21 March 2005 when he was arrested. He was released on bail and, according to [the mother], [the grandmother] failed her bail undertakings and [the father] continued to harass the family, finally breaking into the house and assaulting her parents with an axe. [The mother] denies a close relationship with [the grandmother], whom she views as irresponsible, as failing to protect her and as condoning [the father’s] behaviour toward her. Since [the father’s] conviction the only contact, according to [the mother], has been threatening and abusive. [The mother] understands that the access to [the grandmother] is argued around the right of a grandchild to spend time with a grandparent. She indicated that she understood the importance of grandparents in a child’s life. In this count she believes that [the child] has access to such relationships because he lives with his grandfather and both [the mother’s] grandmothers are alive and act as grandparents to [the child]. [The mother] said that [the child] has access and good relationships with a number of family members, friends of family and any of their offspring. She wondered what benefit he could have from a grandmother who was antagonistic to [the mother] and was likely to expose him to violent and abusive people. She was also concerned that [the grandmother] might abscond with [the child].[The mother] expresses very clearly that she does not trust [the grandmother] and feels threatened by [the grandmother] and her family. She is very concerned about the safety of [the child] if he is allowed access to [the grandmother], because he is likely to be exposed to other members of the family who she also views as complicit with [the father].[The mother] argues that her son is a healthy, happy child who lives in a safe and loving environment. This appeared to be the case in the brief observation of the arrangements she had made for the interview, and the impression of a child that was appropriately active in the company of another under supervision of an adult friend.I have met [the grandmother] (16 April) and understand her argument. However, my impression was that between [the grandmother] has not considered how [the child] might react to a stranger. In addition, I am concerned that the existing tensions between the families are likely to be picked up by [the child], regardless of what is said or not said to him by either parties. According to [the mother], [the child] has access to an extended family and presumably understands these relationships as a two year old. It is unclear how he will understand the requirement to meet someone else without the support of his mother. As I understand it, if there was to be supervised access in a Child Contact Centre, [the child] would not be attended by his mother, largely because of the continued animosity between [the mother] and [the grandmother]. The benefits of right to access, from [the child’s] point of view, are likely to be doubtful. Opinion:It is my opinion that the right to access to [the grandmother], [the child’s] paternal grandmother, must be viewed from the point of view of a two year old child. As I understand it, the Amended Family Law Act, 1975, says that the child has a right to spend time with the grandparent. At the age of two, [the child] is unable to understand that right. Under the current circumstances, given his age and understanding and the current family tensions, [the child] is unlikely to be able to fully benefit from access to his paternal grandmother. (emphasis added)

Ratio Decidendi

Legal Principle Established

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