Lidcombe and Gray and Anor

[2014] FCCA 2441

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIDCOMBE & GRAY & ANOR [2014] FCCA 2441

Catchwords:
FAMILY LAW – Parenting – consideration of whether children should spend time with grandparents – costs.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 117

Maldera & Orbel (2014) FamCAFC 135
Aldridge & Keaton (2009) FLC 93-421
Rice & Miller (1993) FLC 92-415

Applicant: MR LIDCOMBE

First Respondent: MS GRAY

Second Respondent: MR LIDCOMBE

File Number: MLC 544 of 2014

Judgment of: Judge Dunkley

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Melbourne

Delivered on: 26 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Hamilton

Solicitors for the Applicant: Thexton Lawyers

Counsel for the First Respondent: Mr Howe

Solicitors for the First Respondent: Samantha Ward Pty

The Second Respondent appeared in person

ORDERS

1. X born (omitted) 2004 and Y born (omitted) 2006 (“the children”) are to spend time with MR LIDCOMBE and MS LIDCOMBE (“the paternal grandparents”) for two seven day periods during a school holiday period that they would otherwise have spent time with the father pursuant to orders made on 24 July 2013 in proceedings (omitted) by agreement between the father and the paternal grandparents, without those two seven day periods being subject to Order 17 made on 24 July 2013 in the above proceedings.

2. No more than one seven day period with the paternal grandparents pursuant to Order 1 hereof is to occur in any school holiday period.

3. The father shall, on reaching agreement with the paternal grandparents, give not less than 21 days written notice to the mother as to the dates of the periods.

4. Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

5. That all extant applications are otherwise dismissed and removed from the Pending Cases List.

6. The Applicant paternal grandparents pay to the mother her costs, fixed in the sum of $8,509, such payment to be made within 28 days of the date hereof.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 544 of 2014

MR LIDCOMBE

Applicant

And

MS GRAY

First Respondent

MR LIDCOMBE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Yesterday I decided that the so-called rule in Rice & Asplund should not be applied so as to prevent Mr and Ms Lidcombe Senior, whom I will hereinafter refer to as the paternal grandparents, from bringing an application to spend time with the children X born (omitted) 2004, aged nine, and Y, born (omitted) 2006, aged eight.

2. X and Y are the children of the relationship between Ms Gray, whom I hereinafter refer to as the mother, and Mr Lidcombe, whom I hereinafter refer as the father. 

Background

1. The mother and the father seem to have started living together in about September of 2003. 

2. They married on (omitted) 2008.

3. They separated on 4 March 2010 and were divorced on 3 June 2011. 

4. On 13 June 2013, the father filed an Initiating Application in the Federal Circuit Court seeking final parenting orders. 

5. That Application was listed for a directions hearing on 24 July 2013.  Those proceedings have a file number (omitted). 

6. On 24 July 2013, the mother filed a Response. 

7. The mother and father reached agreement as to the final parenting orders that were to apply with respect to X and Y on the first return date, being 24 July 2013.  His Honour, Judge O’Dwyer, made orders in accordance with a consent agreement.  A copy of those orders can be found in file number (omitted), but a copy is conveniently annexed to the initiating application filed by the paternal grandparents on 23 January 2014. 

Orders Sought

1. The orders sought by the paternal grandparents have varied since the filing of their Initiating Application.  For the purposes of the final hearing, they now seek to spend two single week blocks of time with Y and X during school holiday periods that Y and X would otherwise have spent with the father. 

2. The father is supportive of their application.  

3. The mother is not. It is the mother’s case that there should be no change to the orders of 24 July 2013. She submits because the orders of 24 July 2013 were made by consent between the parents, and because she submits that history since the making of those orders, as it relates to the children, has demonstrated that the orders are and remain in the best interests of the children. 

Determination

1. Given that the orders of 24 July 2013 provide for an equal time week-about arrangement, with equal shared parental responsibility, a casual observer might wonder what in this case the fuss is about, as the father could just have authorised his parents to spend time with the children during his school holiday time. 

2. That, however, would have overlooked order 17, made on 24 July 2014, which provides that in the event either party is not in substantial attendance to care for the children during the time the children live with them, being a period in excess of 48 hours, the children shall forthwith be returned to the care of the other parent until such time as the live with parent is available to care for the children. 

3. There has already been at least one occasion – when the father wished to have a holiday in the (country omitted) to see his new wife’s parents – which resulted in the mother implementing order number 17 and prohibiting the paternal grandparents caring for the children whilst the father was away. 

4. During the last school holidays, the mother says that X, in answer to some probing questions from the mother about X’s school holiday time, disclosed that her father had not always been present during the period from Monday to Thursday, and that she had been told not to tell her mother about that fact. 

5. I have no way of knowing whether X was an accurate reporter or not.  The paternal grandmother gave some oblique evidence which would suggest she might not be. 

6. In any event, I am satisfied it would have been confronting for X to be questioned in the way that she was by her mother, and likely may have caused X some emotional concern, even if not obvious.

7. Clearly then to eliminate the possibility of probing questioning of them, a decision has to be made as to whether or not X and Y are to spend time with the paternal grandparents in their own right, absent the presence of the father. 

8. The answer to the above question on the evidence, is hugely discretionary.  

9. The paternal grandparents have the standing to bring this application pursuant to section 65C(b)(a).

10. Orders made are to be informed by the objects as set out in section 60B.

11. Orders must have as their paramount consideration the best interests of the children. 

12. Any orders made must also be reasonably practicable. 

13. In deciding what is in the best interests of these children, or any other children, the Court must consider a number of factors as set out in section 60CC(2), (2A) and (3).

14. On the ordinary reading of section 60CC(2), (2A) and (3), not all of the factors are relevant to grandparents.

15. The Full Court of the Family Court has, however, made plain, if there is any relevant evidence as it relates to an applicant that is not a parent, then all of the factors that have some relevance by virtue of the evidence can be considered by virtue of section 60CC (3)(m).

16. The Full Court has also recently, in the decision of Maldera & Orbel (2014) FamCAFC 135, affirmed again the passages in Aldridge & Keaton a 2009 decision and Rice & Miller, a 1993 decision, in which it was said, and I quote: 

    The fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the children.  We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent.

17. Their Honour’s further went on to say each case must be determined according to its own facts, the paramount consideration always being the welfare of the children. 

18. Whilst this is not a case in which the live-with arrangements for X and Y are to be considered, the above passage is still apposite. Just because there is no criticism of the working of the orders made by consent on 24 July 2013, that does not mean if the father does not spend time with the children for, the two single-week blocks, that it is automatic, or, as counsel for the mother said, axiomatic that the children would be better off spending that time with the mother. Children can benefit from time with grandparents.  

19. The solution would be, if the submissions made on the mother’s behalf were axiomatic to dismiss the parental grandparents’ application simpliciter.  That is not the proper way to determine this case. 

20. The proper way is to evaluate the evidence as and against the factors in section 60CC(2), (2A) and (3), and then decide what is in X and Y’s best interest, and then made orders that are also reasonably practicable.

21. There is no Family Report in this case. 

22. The children are, on all of the evidence of all of the parties, happy, healthy, well-adjusted children, settled well in school and succeeding in their education.

23. They are children who have strong and beneficial relationships with each of their parents.

24. The parents love them dearly, and in return receive their children’s love. 

25. X and Y live in an equal time, seven/seven relationship, moving happily between their parents’ care. 

26. It would seem, in all aspects, they are thriving.  

27. X and Y have the benefit of a meaningful relationship with both of their parents. 

28. They have not been exposed to physical or psychological harm, nor exposed to abuse, neglect of family violence.

29. There is no evidence as to any views being expressed by X and Y. 

30. They have important and loving relationships with their grandparents. 

31. They have, since their respective births, regularly spent time with, been involved with and been cared for by the paternal grandparents. 

32. The paternal grandparents would like more time with X and Y.  They have spent time with them and communicated with them, seemingly without incident. 

33. The children are properly and well maintained. 

34. If the children spend two single weeks with the paternal grandparents during periods that they would otherwise have spent with their father, their relationship with their mother would be unaffected, unless they became aware of the negative views that the paternal grandfather holds about the mother.

35. The paternal grandfather in 2011 shared his views about the mother with a wide-ish audience on Facebook, and by letter to the mother’s extended family. 

36. There is no evidence, thankfully, that the children became aware of this. 

37. The paternal grandfather is a forceful, single-minded person, intent on promoting his own case. 

38. Thankfully, his wife and son are of gentler disposition, and are not condoning of, nor do they share the paternal grandfather’s negative views of the mother.

39. If the paternal grandfather were the sole applicant in this case, his attitude towards the mother would have resulted in a dismissal of his application.  He is fortunate his wife is more conciliatory. 

40. Indeed, it is she who would do most of the caring for X and Y if they are to spend time with the grandparents during the two weeks, as the paternal grandfather’s interests seem to dictate that he would engage himself more with his bridge and his golf than with his grandchildren. 

41. I am satisfied that there has been no repetition by the paternal grandfather of his unsatisfactory conduct in 2011, as seen by his Facebook posts and letter writing. 

42. Nothing will turn children off a relationship more quickly than disrespect directed towards their parents whom they love dearly.  The paternal grandfather would do well to reflect on this. 

43. The father led no evidence that he opposes the children having two single weeks with his parents.  Tantamount, he must anticipate no change in the circumstances of his relationship with X and Y if orders are made as sought by his parents. 

44. The mother presents no evidence that such time would negatively impact her relationship with the children.  She does raise the possibility she might not have an even more important and meaningful relationship with them by spending more time with them.  This is supposition on her behalf that is essentially self-serving, given that she concedes her relationship with X and Y is going so well. 

45. In the circumstances of these children’s lives with their two parents, two weeks more or two weeks less would have little impact, or no impact, or virtually no impact on the children and their relationship with their parents. 

46. What will impact X and Y is probing parental questioning or exposure to negative views about people whom they care for and love, in this case their mother and their father, and their grandparents.

47. There is no evidence in this case relevant to section 60CC(3)(e), (h), (j) or (k).

48. Neither parent criticises the other parent’s capacity as a parent nor the capacity of the grandmother.  The only criticism is made with respect to the paternal grandfather as to the negative attitudes that he holds with respect to the mother. 

49. X and Y are two girls in middle childhood who are developing as well as would normally be expected. 

50. Neither parent criticises the other’s attitude to the responsibilities of parenthood. 

51. It seems the grandparents wish to treat X and Y to a variety of experiences and excursions of the type that one would normally associate with a grandparent/grandchild interaction, for example, holidays and excursions to shows like “(omitted)”. These are the types of activity that enrich children’s lives, grow pleasant memories for them and give them exposure to an older generation than of their parents. All of this is beneficial for X and Y.

52. For the above reasons, X and Y will, on balance, benefit from two single-week holidays with their paternal grandparents. 

53. Those single weeks are to be arranged between the father and the paternal grandparents at times that the children would have otherwise lived with him. 

54. There will be no order to prevent the father from being in attendance on those holidays. 

55. Neither will there be an order requiring him to be in attendance. 

56. Adequate notice of the periods which are to occur is to be given in writing by the father to the mother. The weeks are to occur in separate school holiday periods. That notice will ensure the reasonable practicability of the order, as will the spacing in separate holiday periods.

Costs

1. I am asked to deal with an oral application for costs made on behalf of the mother consequent upon a judgment. 

2. Relevant legislation can be found in section 117 of the Family Law Act 1975. Subsection (1) of that section makes plain that in the ordinary course of events each party would pay their own costs. However the Court has a discretion to order costs. What is sought here is costs pursuant to the schedule found in the Federal Circuit Court Rules. It is sought that the Applicant paternal grandparents pay the costs of the Respondent mother. No costs are sought against the father.

3. In determining this oral application for costs the Court takes into consideration the way that the applications came before the Court. 

4. On 23 January 2014, approximately six months after the making of substantive parenting orders between the mother and the father, the grandparents filed an application in which they sought the following orders:

   We seek to have additions to final orders, file number (omitted), of 24 July 2013 made before Judge O’Dwyer between Mr Lidcombe, applicant, and Ms Gray, respondent, with the following: 

   (1)Order 24:  Notwithstanding paragraphs 8 and 17 therein, that paternal grandparents will have care of the children when the father, during his periods of access, is unable to provide care to his children due to illness, work or recreational commitments.

   (2)Order 25:  Notwithstanding paragraphs 8and 17 herein, that paternal grandparents will, at their discretion, have access to the children for two separate seven-days periods in a calendar year Friday 1520 hours to Friday 1520 hours during the children’s school holiday period and that both period of access will coincide and be in place of the father’s week of access.

   (3)Order 26:  That parental grandparents during any period of care provided to the children will provide their contact details to the parents of their grandchildren and will fulfil an obligation of the final orders.

5. The case outline filed on behalf of the applicant paternal grandparents on 22 August sought orders as follows: 

   That the order of 24 July 2013 in relation to matter (omitted) be varied as follows:  that the paternal grandparents are permitted to spend time and communicate with the children when the father, during his periods of time spent with the children, is unable to care directly for the children due to illness, work or recreational commitments;  that the grandparents spend time with, and communicate with, the children during the school holiday term for two separate seven days from 3.20 pm Friday to 3.20 on Friday, such time to be agreed with the father, and to occur during the time that the children would otherwise be spending with the father, and that the paternal grandparents provide to the mother and the father current mobile and email addresses and, in the event of any change of those details, update the other parties within eight hours of any change thereto, and such other order as the Court deems fit.

6. It was during the course of cross-examination of the paternal grandfather that the final position of the grandparents became clear, that is, that they were seeking two seven-day periods during school holidays that would otherwise have been spent by the children with the father. 

7. The order that they sought with respect to order 24 had fallen away.  Had that been apparent to the mother, it is not beyond possible that she might have consented to the order.  She was, it would seem, at the very least focused on retaining that part of the orders of 24 July 2013 that meant that if either she or the father were unable to care for the children for 48 hours that the children would revert to the care of the other parent.

8. When the challenge to that part of the orders fell away, it did so only during the course of cross-examination. 

9. That is conduct that I find is relevant and would justify the making of an order for costs. 

10. Having determined that there could be an order for costs by way of an exercise of discretion, I must also consider all of the facts as set out in section 117(2A).

11. There is very little information available to me as to the financial circumstances of the grandparents or of the mother. 

12. Neither are in receipt of a grant of legal aid. 

13. The conduct of the grandparents’ case changed, and changed late in the proceedings during the course of cross-examination.

14. These proceedings were not necessitated by a failure of a party to comply with any order of the Court. 

15. The grandparents have been partially successful and the mother has been partially successful. 

16. There is no evidence that either party made an offer in writing to the other party. 

17. It is submitted that it is also relevant that these proceedings could have been, and should properly have been, instituted at the time that that the father’s original application was before the Court.  The paternal grandparents were aware of that application and intimately involved with it. This is relevant because the mother has incurred costs now on two occasions which has meant that the children have lost the benefit of whatever costs she may have incurred.  That factor is also relevant in the determination of this case. 

1. By reason of the late change in the orders sought by the paternal grandparents and having regard to the fact that the children are disadvantaged as a result of the mother having to retain legal representation or spend more on that representation in these new proceedings, I make an order that the paternal grandparents pay the mother’s costs assessed pursuant to the schedule notwithstanding they succeeded in the hearing on the revised orders and the mother did not.

2. The applicable items in the schedule to the Federal Circuit Court Rules are item 1, $1994, for the opposing of an application; item 6, $4250, being preparation for a final hearing which lasted for less than one day; item 9, for the taking of judgment, $271; and item 13, being a daily hearing fee for more than half a day but less than a full day, $1994.

3. The total costs quantified as particularised above is $8509. Those costs are to be paid by the paternal grandparents to the mother or as she directs within 28 days of the date hereof.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  4 November 2014