McKENZIE and Edwards - [2006] FamCA 1314

FAMILY COURT OF AUSTRALIA

McKENZIE & EDWARDS

[2006] FamCA 1314

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN - TIME TO BE SPENT WITH GRANDPARENT - Issue of time to be spent by two children aged 4 and 6 with their paternal grandmother – Children live with their mother and have infrequent visits with their father – Mother opposed to overnight visits at the grandmother’s farm – Mother submitted that the Federal Magistrate’s reasons for ordering overnight visits were inadequate and that there had been a failure to consider relevant parts of s 60CC of the Family Law Act – Federal Magistrate noted the possible dangers posed to the children by the farm environment but considered that the grandmother would be vigilant – The children had not had extensive contact with the grandmother in the past but the Federal Magistrate considered they should have the opportunity to develop a relationship with her and other members of the paternal family – No evidence that overnight contact would be traumatic to the children nor that this claim was pressed upon the Federal Magistrate – No evidence that grandmother unable to meet the children’s needs – No error discerned in Federal Magistrate's decision – Appeal dismissed.

Family Law Act 1975 (Cth)

Gronow (1979) 144 CLR 513
Stephens v Lee (1991) FLC 92-201

APPELLANT:

L McKENZIE

FIRST-NAMED RESPONDENT

PATERNAL GRANDMOTHER:

K EDWARDS

SECOND-NAMED RESPONDENT

FATHER

C McKENZIE

FILE NUMBER:

MLM

3078

2006

APPEAL NUMBER:

2006

DATE DELIVERED:

17 NOVEMBER 2006

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE KAY

HEARING DATE:

17 NOVEMBER 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDER DATE:

9 AUGUST 2006

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MS COLLA

SOLICITORS FOR THE APPELLANT:

MORRISON & SAWERS

COUNSEL FOR THE FIRST-NAMED

RESPONDENT PATERNAL

GRANDMOTHER:

MR HOLMES

SOLICITORS FOR THE FIRST-NAMED

RESPONDENT PATERNAL

GRANDMOTHER:

TEHAN GEORGE & CO

COUNSEL FOR THE SECOND-NAMED

RESPONDENT FATHER:

IN PERSON

Orders

The appeal filed 6 September 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 56 of 2006
File Number: MLM 3078 of 2006

L McKENZIE

Appellant Mother

And

K EDWARDS

First-named Respondent Paternal Grandmother

And

C McKENZIE

Second-Respondent Father

REASONS FOR JUDGMENT

This is a hearing of an appeal from orders made by O'Dwyer FM on 9 August 2006 concerning the amount of time that the children, the subject matter of the orders, were to spend with their paternal grandmother.
I am sitting as a judge hearing the appeal, having been delegated to sit alone pursuant to the provisions of s 94AAA(3) of the Family Law Act 1975 (Cth). The nature of the appeal is that it is a limited rehearing of a search for error with the capacity for the introduction of further material. There being no further material sought to be relied upon by any of the parties it reverts back to simply a search for error.
It is an appeal from the discretionary judgment, and as Stephen J said in Gronow (1979) 144 CLR 513 at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, the decision being no proper exercise of his or her judicial discretion.
The issue that was before the Federal Magistrate was of a very narrow compass. It concerns two young children, C born in July 2000, now approaching six and a half, and E born in August 2002, now four years of age. The children live with their mother. Their father lives in Western Australia. In the course of the proceedings that went before the magistrate, there were orders made that are not the subject of the appeal that provide for time that the children are to spend with their father on two occasions each year.
As part of the same set of proceedings the paternal grandmother brought an application seeking to spend time with the children, and the dispute effectively narrowed itself down as to whether that time should be on one Saturday per month or on one weekend per month from Saturday through to Sunday. The mother was opposed to the overnight periods taking place.
The Federal Magistrate ultimately ordered that the overnight periods take place effectively on 10 occasions a year, commencing from the time the children finish their swimming obligations on a Saturday until 5 pm on Sunday.
There is some travel involved in the exercise. The parties live some 90 minutes apart by motor vehicle, and the orders contemplate appropriate arrangements that should be made in respect of the travel.
The particular orders that concern the appeal are, firstly, order 13 that reads:
[The paternal grandmother Mrs Edwards have time with the children].
Commencing Saturday 25 November 2006 and each fourth Saturday of each calendar month thereafter, from the end of swimming lessons until 5 pm on Sundays.-
In the event the children are not attending swimming lessons on the fourth Saturday of the month, then from 11 am.
Order 14:
The paternal grandmother's contact will be suspended during the calendar months that the father exercises contact with the children.
There were orders made as to the method in which the delivery and return of the children should take place.
The gravamen of the mother's complaints relating to the orders is, firstly, that it was suggested that there were inadequate reasons for judgment given and more particularly that the Federal Magistrate did not give attention to relevant parts of s 60CC of the Family Law Act and in particular
·    the nature of the relationship between the children and the paternal grandmother, particularly the limited contact the children have had with the paternal grandmother,
·    the impact of separation from the mother upon the children, and
·    the capacity for the paternal grandmother to meet the medical needs and general needs of the children.
The manner in which the grounds need to be examined is in my view to be looked at in light of the manner in which the case was presented to the Federal Magistrate and the issues that he was asked to determine. It does not behove an appellant to complain of a failure of the Federal Magistrate to attend to issues that he was not invited to give consideration to.
In the course of the reasons for judgment, the Federal Magistrate highlighted the issues that he saw as relevant and endeavoured to deal with them. The judgment is of short compass.
His Honour firstly paid attention to the issue that the children were very young and that they had an extended paternal family who visited the grandmother's farm for occasions. He noted that the father was living in Western Australia and that would give the children limited opportunity to have a relationship with his paternal side, and that the father was supporting the grandmother in her endeavours to expose the child to his side of the family.
I should interpose that the father attended this appeal by telephone and supported the dismissal of the appeal, effectively supporting the orders that were made.
The Federal Magistrate had noted in par 4 of his judgment that the father was anxious, and certainly the paternal grandmother was anxious, to establish and maintain for the children an understanding and knowledge of the extended paternal family.
He dealt with the basis upon which the mother had opposed the making of the orders, particularly that it would place a financial burden upon her, and he dealt with that in a manner which is not the subject of the appeal, namely, that the grandmother would do the travelling until the mother was in a position, by reason of her employment, to share in the travelling.
He then attended to focus upon other problems that the mother had raised, particularly the presence of an unfenced dam on the farm where the children would be, and the Federal Magistrate said he was quite alert to the dangers of the children being exposed, but concluded that the grandmother would be vigilant to the difficulties and would try, using her best endeavours, to supervise the children and hopefully that would minimise the risks that were involved.
He was conscious of the fact, it appears, that the grandmother had to date not played an extensive part in the children's lives but took the view that the opportunity to remedy that error - if it could be seen as an error - was one that should be seized upon to the limited extent that these orders provide which is really 10 overnight periods of contact each year.
He found that the grandmother was a reasonable person who was genuine in her attempts to facilitate contact and that she would be prepared to compromise to meet the mother's concerns. The Federal Magistrate took the view that the children's best interests would be well advanced by allowing them ample opportunity to have a meaningful relationship with their paternal grandmother.
The mother's complaints that are raised in the notice of appeal concern particularly the fact of the previous limited contact the children have had with their paternal grandmother. The mother and father had lived in Western Australia whilst the paternal grandmother lived in Victoria and that situation persisted until 2004. In the last two years there have been few opportunities granted to allow the grandmother to see the children. From the evidence that was before the Federal Magistrate it appears that on the occasions that they did, the children responded appropriately to her and she to the children.
The complaint that there has been an inadequate amount of time previously does not really meet the argument that that is best remedied by increasing the amount of time. There was no evidence before the Federal Magistrate that was emphasised by counsel for the wife that the exercise of the children actually spending an overnight period with their grandmother on several occasions each year would be traumatic to them and that there should be a long introductory period of non-overnight contact properly assessed before overnight contact was introduced.
The orders themselves allowed for three such periods over three months in an introductory period and there is nothing now before the Court to indicate that that introductory period has not functioned adequately or appropriately.
It cannot then be a criticism of the Federal Magistrate that he had failed to properly give consideration of this matter when it was not being particularly urged upon him. There was no evidence at all of the impact of the separation from the mother of the children for an overnight period with the grandmother, who had only the best intentions towards the children.
Issues relating to the medical needs and general needs of the children were canvassed in a broad sense. There was a particular complaint by the mother that the father did not appreciate the children's dietary needs but there was no complaint that the grandmother did. There was a complaint by the mother that the grandmother may not be physically capable of dealing with children as young and as sprightly as these children, and the magistrate dealt with those matters. They were canvassed in evidence. The grandmother was cross‑examined about them. She gave evidence of her involvement in dressage on a weekly basis, and she gave evidence about the physical activities that she attends to in her day‑to‑day life, and really no headway was made in relation to the evidence relating to her capacity to meet the general needs of the children.
In the circumstances, the areas that are endeavoured to be canvassed by the notice of appeal do not demonstrate to me any inadequacy of the process nor the application of inappropriate principles by the trial judge.
The principles that the Federal Magistrate was required to pay attention to are set out in s 7 of the Family Law Act, in particular the Federal Magistrate is required to make an order that is in the best interests of the children involved and in so doing is required to pay attention to the matters set out in s 60CC insofar as they were relevant.
One of the matters that the legislature directed the Court to pay attention to is the relationship between a child and a grandparent or other relative of the child. I said in Stephens v Lee (1991) FLC 92-201 that where there was a significant degree of hostility between a custodial mother and a paternal grandmother, it would be too great an imposition on the mother to expect an access regime to work efficiently and effectively. The decision in Stephens v Lee needs to now be revisited in the sense that there have now been two attempts by the legislature to emphasise the significant role that a grandparent can play in a child's life. Although that emphasis was not present in 1991 in the legislation, it was introduced in 1995 and has been re-emphasised in the current legislation.
Indeed, the issue in this case was much narrower. It was not that the grandparent should not play any role in the children's lives, it was really the extent to which the children's grandparent should be involved. That narrow issue is a matter that is peculiarly within the mind of the judicial officer determining the case. The fact that one judicial officer may come to a different conclusion is not a basis for interference.
In my view it is clear from reading the reasons for judgment given by the Federal Magistrate as to why it was that he reached the decision that he did and, as such, the authorities that relate to the adequacy of reasons, such as Bennett v Bennett (1991) FLC 92-191 have been appropriately answered.
I should say that in those circumstances whilst the appeal must be dismissed, judgments that deal with arrangements for children are all in some sense experimental and that if the wrong decisions have been made in terms that the order does not work out adequately and properly to advance the welfare of the children, there is an opportunity for the matter to be revisited. I am not inviting the parties to re-litigate in this case if things do not work out. Indeed, one hopes that for the benefit of the children that matters work out as smoothly as they possibly can.
To that end, in light of some of the matters that were raised by Ms Colla on behalf of the mother in these proceedings, the parties have had some discussions and have indicated that they have reached a memorandum of agreement about matters to advance the manner in which the ongoing arrangements for the children can best be facilitated. I propose to read these now into the reasons that I am giving to indicate the goodwill that hopefully is generated by these proceedings. These are not part of the formal orders of the court which will simply be that the appeal be dismissed, but they are part of the record of the court and indicate what the parties have reached some agreement about. They are as follows:
(1)That the parties use a communication book to relay brief factual messages in respect of the children's needs and such book travel with the children.
(2)That the parties attend counselling at Relationships Australia [S] branch as soon as practicable to discuss their communication and their specific issues arising between them in connection with the final orders made on 9 August 2006 and the costs of such counselling be paid by the parties as directed by Relationships Australia guidelines and policy.
I am assuming that the reference to "the parties" in these minutes are the mother and the paternal grandmother, not the father who is in Western Australia, although of course he can be involved in the counselling by telephone or otherwise and presumably he will be welcome to do so
(3)The father and the paternal grandmother be at liberty to telephone the children's general medical practitioner, Dr [G], telephone […] on or after 18 November 2006 to discuss the children's medical needs in respect of their diets and asthma, and the mother shall do all things necessary to authorise to Dr [G]'s communication with the father and the paternal grandmother.
I hope that the process today has had some cathartic effect even if the mother will perhaps be disappointed with the result. It is the nature of the processes that a trial judge is the person who makes the decisions and unless, as I have indicated, there is some clear error, it is not for the appellate court to impose its own views as to what an appropriate outcome should be.
The legislature made it clear that grandparents are significant in children's lives, or can be significant in children's lives. One hopes that all of the necessary precautions are taken by the grandmother to ensure the safety of the children and I hope that with the passage of time the families can build up a modicum and method of communication that will certainly advance the welfare of the children.
As I have indicated, the formal orders will be:
(1) The appeal filed 6 September 2006 be dismissed.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate:

Date: 27 November 2006