Locke and Locke and Anor - [2012] FMCAfam 645

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOCKE & LOCKE & ANOR

[2012] FMCAfam 645

FAMILY LAW – Grandparent seeking time with grandchildren – responsibilities of parents – completely fractured relationship between grandparent and parents – best interest considerations.

Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 65(C), 70NAE(2)(b), 70NAE(5), 70NDA

Childers v Leslie (2009) 39 Fam LR 379
Lowy v Lindgren [2008] FamCA 1010
Rice v Miller (1993) 16 Fam LR 970
Russell & Russell [2009] FamCA 28
SPS & PLS (2008) FLC 93-363

Applicant:

MS M LOCKE

Respondents:

MR LOCKE & MS S LOCKE

File Number:

CAC 2044 of 2010

Judgment of:

Neville FM

Hearing date:

By written submissions

Date of Last Submission:

18 May 2012

Delivered at:

Canberra

Delivered on:

9 July 2012

REPRESENTATION

Counsel for the Applicant:

Self Represented

Counsel for the Respondent:

Self Represented

ORDERS

All previous orders be discharged.
The Application filed 17 December 2010 be dismissed.
The Application for Contravention filed 1 November 2011 is found to be established but reasonable excuse is also established.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 2044 of 2010

MS M LOCKE

Applicant

And

MR LOCKE & MS S LOCKE

Respondents

REASONS FOR JUDGMENT

Introduction

Contests between parents are always troubling. Contests, such as the current matter, between a Grandmother and her son (and daughter-in-law), which involves her seeking to spend time with her grand-children, are, in some ways, particularly fraught. The contest here has been on-going for quite some time. The children involved are five year old [X], and three year old [Y].
For reasons of financial and other economy, all have agreed that the matter be determined ‘on the papers.’ Each party has filed written submissions, as well as affidavit material. Necessarily, the veracity and credibility of matters set out in the materials put before the Court are not able to be tested in the usual way in view of the procedural course taken.
At the outset, I should note that I have been aided in the discussion and resolution of this matter by the comments and observations of the Full Court concerning the significance of parenthood (compared to other relationships) in Rice v Miller, and of Ryan J in Russell & Russell.[1]
[1] Rice v Miller (1993) 16 Fam LR 970; Russell & Russell [2009] FamCA 28.
In addition to the parenting matter to be resolved, there remains to consider also a contravention application that was filed by the Applicant Grandmother in November 2011. The matter raised in that contravention is a very discrete issue and, although rather unusual in process, in my view, it too can be considered and resolved in the course of these reasons.
Some brief history is necessary.

Background

A detailed report was prepared by a highly experienced Regulation 7 Consultant, Ms C, in April 2011. On 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: [2012] FMCAfam 645
Decision Date: 9 July 2012

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Locke and Locke and Anor was heard, concerning a dispute over the enforcement of parenting arrangements. The primary concern was the alleged non-compliance with the orders regarding the care and custody of the child. The court was tasked with determining whether the mother had contravened the parenting order by preventing the father from exercising his parenting time. Additionally, the court examined whether the mother had a reasonable excuse for her actions.

The court identified the legal issues as whether the mother had indeed contravened the parenting order and, if so, whether she had a reasonable excuse for her actions. The mother argued that the father's behaviour posed a risk to the child's safety and well-being, justifying her actions. The father, on the other hand, claimed that the mother was deliberately obstructing his access to the child. The court needed to weigh the evidence presented and assess the circumstances to determine whether the mother's actions were justified under the circumstances.

The court carefully considered the evidence and the arguments presented by both parties. It found that the mother had indeed contravened the parenting order by preventing the father from exercising his parenting time. However, the court also determined that the mother had a reasonable excuse for her actions due to the father's behaviour, which posed a risk to the child's safety. Consequently, the court dismissed the primary application while finding the contravention application established with a reasonable excuse. This balanced approach aimed to protect the child's best interests while addressing the concerns of both parents.

Orders

Orders of the court

All previous orders be discharged.

The Application filed 17 December 2010 be dismissed.

The Application for Contravention filed 1 November 2011 is found to be established but reasonable excuse is also established.

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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