McKenzie and Duncan and Anor - [2011] FMCAfam 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKENZIE & DUNCAN & ANOR

[2011] FMCAfam 770

FAMILY LAW – Parenting of children – competing application between father and maternal great grandparents – consideration of maternal great grandparents capacity to foster or even appreciate primacy of father’s role in parenting children – substance abuse and mental health issues relating to mother – failure of maternal great grandparents to recognise or appreciate effects upon children of interaction with mother – overview of objects, principles and considerations – commentary upon primacy of parental responsibility – exercise of discretion.

FAMILY LAW – Children – consideration of restraint upon institution of further proceedings until costs orders paid in full or leave granted by court of competent jurisdiction – consideration of financial and emotional effect upon children of further litigation – exercise of discretion.

Family Law Act 1975 (Cth), ss.60B(1) & (2), 60CA, 60CC(2) & (3), 118

Church v T Overton & Anor [2008] FamCA 965
Bemert & Swallow [2009] FamCA 5

Applicant:

MS MCKENZIE

First Respondent:

MR DUNCAN

Second Respondent:

MS CAMPBELL

File Number:

CSC 633 of 2009

Judgment of:

Coker FM

Hearing dates:

6 May 2011 and 13 July 2011

Date of Last Submission:

13 July 2011

Delivered at:

Townsville

Delivered on:

19 August 2011

REPRESENTATION

For the Applicant:

In Person

Counsel for the 1st Respondent:

Ms Mayes

Solicitors for the 1st Respondent:

Roati & Firth Lawyers

For the 2nd Respondent

No appearance by or on behalf of the 2nd Respondent

ORDERS

That the Mother, MS CAMPBELL, be rejoined as a party to these proceedings.
That the Maternal Great-Grandparents spend time with the children, [X] born [in] 1997 and [Y] born [in] 1999, at all reasonable times as may be agreed in writing between the Maternal Great-Grandparents and the Father, but otherwise at times determined by the Father.
That the Maternal Great-Grandparents communicate with the children by telephone at all reasonable times as may be agreed in writing between the Maternal Great-Grandparents and the Father, but otherwise between the hours of 7.00pm and 7.30pm each Sunday, or as determined by the Father.
That the Mother, MS CAMPBELL, having been given leave to withdraw and subsequently rejoined as a party to these proceedings, be restrained and an injunction issue restraining her from commencing further proceedings in relation to the children, until such time as she has paid in full the costs orders made against her as follows, together with interest that has accrued to the present date at the Family Court Default Interest Rate, which is currently 10.75 per cent per annum:
(a)Order made in the Magistrates Court of Queensland on 17 December 2001 – costs outstanding $2,774.12;
(b)Interest to 27 June 2011 on $2,774.12, being $2,703.78 with interest accruing at $0.82 per day;
(c)Order made in the Federal Magistrates Court of Australia at Townsville on 12 February 2007 in the sum of $2,545.00;
(d)Interest to 27 June 2011 on $2,545.00, being $1,167.53 with interest accruing at $0.75 per day.
That pursuant to Section 118(1)(c) of the Family…

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.

Keep reading for free

Create a free CaseChat account to read McKenzie and Duncan and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCAfam 770
Decision Date: 19 August 2011

CaseChat Overview and Summary

This case involved a dispute between the father of two children, and the maternal great grandparents of the children, concerning parenting arrangements. The case was heard in the Family Court of Australia. The children, born in 1997 and 1999, were the subject of a parenting application by the father, who sought to establish his role as the primary caregiver. The maternal great grandparents, who had previously been involved in the care of the children, opposed the father’s application and sought to establish their own parenting arrangements.

The legal issues before the court included the consideration of the maternal great grandparents' capacity to foster and appreciate the primacy of the father's role in parenting the children. The court had to consider the substance abuse and mental health issues of the children's mother, and whether the maternal great grandparents had failed to recognise or appreciate the effects of her interaction with the children. The court also had to exercise its discretion in considering the restraint upon the institution of further proceedings until costs orders were paid in full or leave was granted by a court of competent jurisdiction. Additionally, the court had to weigh the financial and emotional effect upon the children of further litigation.

The court found that the maternal great grandparents had failed to appreciate the primacy of the father's role in parenting the children, and that their interactions with the children's mother had a negative impact on the children. The court also found that the financial and emotional effect of further litigation on the children was significant. The court exercised its discretion to restrain the mother from instituting further proceedings until she had paid the costs orders made against her, and to grant the father primary parenting responsibility. The court also dismissed all other outstanding applications.

The court made orders that the mother be rejoined as a party to the proceedings, that the maternal great grandparents be granted supervised contact with the children, and that the mother be restrained from instituting further proceedings until she had paid the costs orders made against her. The court also made orders for the mother to be restrained from instituting further proceedings under the Family Law Act without leave of the court or a court of competent jurisdiction. Finally, the court made orders for the parties to file and serve any submissions in relation to costs within specified timeframes.

Orders

Orders of the court

That the Mother, MS CAMPBELL, be rejoined as a party to these proceedings.

That the Maternal Great-Grandparents spend time with the children, [X] born [in] 1997 and [Y] born [in] 1999, at all reasonable times as may be agreed in writing between the Maternal Great-Grandparents and the Father, but otherwise at times determined by the Father.

That the Maternal Great-Grandparents communicate with the children by telephone at all reasonable times as may be agreed in writing between the Maternal Great-Grandparents and the Father, but otherwise between the hours of 7.00pm and 7.30pm each Sunday, or as determined by the Father.

That the Mother, MS CAMPBELL, having been given leave to withdraw and subsequently rejoined as a party to these proceedings, be restrained and an injunction issue restraining her from commencing further proceedings in relation to the children, until such time as she has paid in full the costs orders made against her as follows, together with interest that has accrued to the present date at the Family Court Default Interest Rate, which is currently 10.75 per cent per annum:

(a) Order made in the Magistrates Court of Queensland on 17 December 2001 – costs outstanding $2,774.12;

(b) Interest to 27 June 2011 on $2,774.12, being $2,703.78 with interest accruing at $0.82 per day;

(d) Interest to 27 June 2011 on $2,545.00, being $1,167.53 with interest accruing at $0.75 per day.

That pursuant to Section 118(1)(c) of the Family Law Act 1975, the Mother shall not, without leave of the Court or of a Court of competent jurisdiction, institute proceedings under this Act for parenting orders or enforcement of parenting orders.

That should there be any application for costs on the part of the Father then the Father be at liberty to file and serve any submissions in relation to same, within 28 days of the date of this order, and that the Respondent Great Grandparents have leave to file and serve any submissions in response within 42 days of the date of this order, and that unless otherwise requested in writing, that the determination of any such application proceed in chambers.

That all outstanding applications be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.