Mrs Coleman v Mr Hindle - [2011] HCASL 135

MRS COLEMAN
v
MR HINDLE & ORS
[2011] HCASL 135
B13/2011

The applicant is the maternal grandmother of two children of the first and second respondents and the mother of the second respondent. On 22 April 2010, the Family Court of Australia ("the Court") (Watts J) made final parenting orders concerning the applicant's two grandchildren, pursuant to the Family Law Act 1975 (Cth) ("the Act"). Amongst other things, the primary judge ordered that the first and second respondents (collectively, "the parents") have shared parental responsibility for the children, that the children spend no time with the applicant and their maternal grandfather, the fourth respondent (collectively, "the maternal grandparents"), and that the maternal grandparents are restrained from attempting to contact the children by any means ("the parenting orders"). The primary judge also ordered, pursuant to s 118(1)(c) of the Act, that the maternal grandparents be restrained from instituting further proceedings under the Act for parenting or other orders in relation to the children without leave of the Court.
Having regard to the factors set out in s 60CC of the Act, the primary judge held that the parenting orders were in the best interests of the children. The primary judge's findings in connection with these orders included findings that the children had a meaningful and loving relationship with their parents; that the children wished to reside with the second respondent and spend time with the first respondent; that each parent was willing to facilitate close relationships between the children and the other parent; that the children had suffered as a result of the dispute between the maternal grandparents and the parents; and the practical difficulties of the children living with the maternal grandparents, who lived approximately 900km away from the parents. The primary judge either questioned or positively rejected a number of allegations made by the maternal grandparents against the parents, the most damaging of which was that the second respondent had sexually abused one of the children, finding the applicant an unreliable witness who on occasion gave false evidence.
On 28 January 2011, the Full Court of the Family Court of Australia (Bryant CJ, O'Ryan and Strickland JJ) unanimously dismissed the applicant's appeal. The Court held that the applicant had not established that the primary judge had acted upon a wrong principle of law, and further held that she had not demonstrated any error in the primary judge's findings of fact or in the exercise of his Honour's discretion. There had been no procedural unfairness.
The applicant requires an extension of time to file her application in this Court. That extension should not be granted. The applicant has not advanced any questions of law that would justify a grant of special leave to appeal and she enjoys no prospects of success in this Court. The orders made at first instance were clearly open to the primary judge. The proper administration of justice does not require this application to proceed.
Pursuant to r 41.10.5 we direct the Registrar to draw up,…

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: [2011] HCASL 135
Decision Date

CaseChat Overview and Summary

In the matter of Mrs Coleman v Mr Hindle, the applicant, the maternal grandmother, sought to appeal the parenting orders made by the Family Court of Australia. The dispute centered on the parenting arrangements for her two grandchildren, where the primary judge had ordered that the children spend no time with their maternal grandparents and that the grandparents were restrained from contacting the children. The Full Court of the Family Court of Australia dismissed the applicant's appeal, finding no error in the primary judge's exercise of discretion or findings of fact.

The legal issues that the High Court was required to decide involved whether the applicant had demonstrated any errors by the primary judge that warranted an appeal, and if there were any questions of law that would justify granting special leave. The applicant argued that the primary judge had acted upon a wrong principle of law and that there were errors in the findings of fact. Additionally, the applicant claimed that the primary judge had not adequately considered certain evidence and that the orders were not in the best interests of the children.

The High Court found that the applicant had not established any errors by the primary judge that would warrant an appeal. The Court held that the applicant had not demonstrated any error in the primary judge's findings of fact or in the exercise of his discretion. The Court also found that there were no procedural unfairness and that the primary judge's orders were clearly open to him. The High Court concluded that the applicant had not advanced any questions of law that would justify a grant of special leave and that she had no prospects of success in the appeal.

Accordingly, the High Court dismissed the application for special leave to appeal. The Court directed the Registrar to draw up, sign and seal an order dismissing the application, confirming the parenting orders made by the Family Court of Australia.

Orders