Rodeo and Pryor & Anor
[2011] FamCAFC 180
•6 September 2011
FAMILY COURT OF AUSTRALIA
| RODEO & PRYOR AND ANOR | [2011] FamCAFC 180 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against the exercise of discretion – Where the maternal grandmother sought orders that the three children live with her – Where the trial judge found it was in the best interests of the children to live together with the father – Where his Honour was aware of the father’s history of drug use – Where it cannot be said that the trial judge attributed too much weight to the word “parent” – Where it was found that the trial judge gave appropriate weight to the evidence before him – No error of fact established – Where the orders made were within the range of reasonable discretion – Appeal dismissed. FAMILY LAW – COSTS – Where the maternal grandmother was wholly unsuccessful – Where the maternal grandmother, although in receipt of Legal Aid is arguably in a superior position to the father, who is not in receipt of Legal Aid funding – Where the father is unemployed, has three children to support and a substantial debt arising from the parenting proceedings and has been put to the expense of an unsuccessful appeal – Where it would be an unjust outcome for the father to be left responsible for all of his costs of and incidental to the appeal merely because the maternal grandmother would have difficulty making a contribution to those costs – Maternal grandmother to pay one half of the father’s costs of and incidental to the appeal, as agreed or assessed. |
| Aldridge & Keaton (2009) FLC 93-421 |
| Family Law Act 1975 (Cth) s 117(2A) |
| APPELLANT: | Ms Rodeo |
| FIRST RESPONDENT: | Mr Pryor |
| SECOND RESPONDENT: | Ms Matthew |
| FILE NUMBER: | PAC | 1201 | of | 2008 |
| APPEAL NUMBER: | EA | 138 | of | 2009 |
| DATE DELIVERED: | 6 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Thackray & Loughnan JJ |
| HEARING DATE: | 24 August 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 October 2009 |
| LOWER COURT MNC: | [2009] FamCA 1166 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT MATERNAL GRANDMOTHER: | Mr N. Jackson |
| SOLICITOR FOR THE APPELLANT: | Adams & Partners Lawyers |
| FIRST RESPONDENT FATHER: | Father in person |
| SECOND RESPONDENT MOTHER: | No appearance |
Orders
The appeal is dismissed.
The maternal grandmother pay one half of the father’s costs of and incidental to the appeal as agreed or assessed.
IT IS NOTED that publication of this judgment under the pseudonym Rodeo & Pryor and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 138 of 2009
File Number: PAC1201 of 2008
| Ms Rodeo |
Appellant
And
| Mr Pryor |
First Respondent
And
| Ms Matthew |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By her Further Amended Notice of Appeal filed 13 September 2010, Ms Rodeo (“the maternal grandmother”) appealed against the orders made by Waddy J on 23 October 2009 in relation to three children. The parties to the proceedings are the maternal grandmother, Mr Pryor (“the father”) and Ms Matthew (“the mother”). The children are T Pryor born September 2000, A Pryor, born October 2002, and E Pryor, born June 2006. As at the date of the first instance judgment they were therefore 9, 7 and 3 years of age, respectively.
The orders of the trial judge provided that the parties share parental responsibility except in relation to the school/s attended by the children, in which regard the father is solely responsible, albeit after input from the mother and maternal grandmother. Among other orders, the children were to live with the father and spend time on some weekends and for periods during school holidays with the mother and with the maternal grandmother.
In lieu of the orders of the trial judge, among other orders the maternal grandmother sought orders providing for the parties to have equal shared parental responsibility and for the children to live with her and spend time with their parents.
The father opposed the maternal grandmother’s appeal and sought to maintain the orders of the trial judge. The mother took no meaningful part in the appeal.
Background
There is no challenge to the findings of the trial judge in relation to the relevant background history. The following comes from the reasons for judgment at first instance and does not appear to be controversial.
The maternal grandmother was 52 years of age at the date of the judgment. The father was 31 years of age and the mother was 33 years of age.
The parents’ relationship commenced in 1998. They lived with the maternal grandmother, who then lived in Sydney’s south with a friend, Mr TM, together with her other two children, Y and X. In 1999, the parents moved to a property at B.
T Pryor was born in September 2000.
A Pryor was born in October 2002.
The father described the relationship between himself and the mother as “stormy.” The mother and the father used illegal drugs.
The mother admitted that while she was working, she had trouble paying the bills due to the parents’ addictions. She claimed the father had difficulty holding down a full-time job. The parents separated, according to the mother, for a period of five months, from November 2005. Only a week into the separation, the mother discovered she was pregnant with a third child. She gave evidence that they recommenced their relationship in April 2006. The mother gave evidence that towards the end of their relationship, both she and the father were taking the drug, ice, at least once a week. There were constant fights.
In November 2005, the mother and father separated for several weeks.
In 2006, the eldest child, T, commenced school at F Public School.
E Pryor was born in June 2006.
On 17 October 2006, the mother, who was and remained employed by an events company, travelled to Queensland for a week to work. She left all three children in the father’s care. Several days later, the father suffered a severe migraine headache. He felt he could not adequately care for the children. In accordance with the father’s request, the paternal grandmother collected the children and took them to her home for the night. Several days later the mother returned from Queensland.
In November 2006, the parents separated again. The father moved to Queensland. He visited the children from time to time.
In October 2007 the mother went away for work and left all three children in the care of her younger brother, Y. After 2 weeks and upon being told that he would need to mind the children for a longer period, Y told his mother, the maternal grandmother, that he could not cope with them. The maternal grandmother contacted the mother and offered to care for the children herself, if the mother wanted her to. The mother told her to give the children to the father until she (the mother) returned. On 23 October 2007 the father was telephoned at work and told to contact the maternal grandmother. He arranged for his mother to drive him to the mother’s home. The maternal grandmother said:
[The mother] has abandoned the children. The children are too much for me to handle all together and [Y] can’t cope either.
As a result the father became the full-time carer for the children.
The father resigned from work and applied for emergency accommodation, for a supporting parenting benefit and the family tax benefit. On 1 November 2007 the father was offered a 3 bedroom townhouse for 3 months, while permanent accommodation was sought. On 24 November 2007 the older children stayed with the maternal grandmother overnight.
During some part of November/December 2007 the father and the children resided in a men’s refuge. The father and the children spent a weekend at the home of the paternal grandmother.
After Christmas, the father and the children returned to the refuge in C. By arrangement, the three children then came into the maternal grandmother’s care. It was agreed they would stay with her until Sunday, 6 January 2008. When the younger children returned to the father, with the agreement of the father, T stayed with the maternal grandmother. At first, the arrangement was that he would stay for another week. That time was extended at the maternal grandmother’s request, for various purported reasons. T remained with the maternal grandmother until the date of the hearing.
The refuge authorities found a bong among the father’s possessions and on 19 January 2008, asked him to leave his accommodation at C. He moved into a caravan park in P.
On 11 March 2008 the maternal grandmother instituted the parenting proceedings, seeking orders that included all three children living with her.
On 23 June 2008 the father and the maternal grandmother entered into interim orders by consent. These interim orders provided for T to spend time with the father and for the two younger children to spend time with the maternal grandmother and the mother. The weekends were shared so that the children would be together each weekend with either the father or the mother and maternal grandmother.
Further interim consent orders were made for the Christmas holidays and thereafter the arrangement under the earlier interim orders was to be reinstated.
The result was that, as at the date of trial, the three children had not lived together since, at least, 31 December 2007, but had spent some holidays and alternate weekends together.
At the time of the hearing before Waddy J, the father and the two younger children resided with the paternal grandmother and her partner.
The Hearing
At the hearing of the appeal the maternal grandmother was present and represented by solicitor and counsel. The father was present but was not represented. The mother did not appear.
At the outset, counsel for the maternal grandmother withdrew the application filed 22 July 2011 to adduce fresh evidence. He abandoned grounds 3 & 4. During the course of argument he also abandoned grounds 6 & 14.
The court had the assistance of written summaries of argument prepared by the counsel for the maternal grandmother and by the former counsel for the father. Learned counsel for the maternal grandmother spoke to his written argument but did not significantly add to that argument. In response to questions from the bench, the father made some submissions about costs but otherwise did not add to the written argument prepared on his behalf.
Grounds of Appeal
The maternal grandmother’s Further Amended Notice of Appeal articulated 14 grounds. Grounds 3, 4, 6 & 14 were subsequently abandoned.
For convenience, the remaining grounds will be discussed in the order and groupings in which they were raised in the written and oral argument on behalf of the maternal grandmother.
Ground 1
That His Honour erred in providing no reasons or inadequate reasons as to the Father’s capacity to care for all three children.
By written submissions filed in her case, the maternal grandmother argued that until the parents’ separation in November 2007, the father used drugs; the mother alleged that he used heroin; the father had difficulty holding down a job; the father lost his drivers licence; and apart from a week in 2006, had never been the primary care giver for the children. All three children came to him in November 2007 but by 6 January 2008 T lived with the maternal grandmother and so the father only had the care of the younger children. The trial judge said that for periods when the father had shared parental responsibility for them, the neglect of the children and their environment had been “horrifying”.
The trial judge identified the problems facing T and A if they are to live together with the father. For example the family consultant was concerned that both T and A spoke guardedly of their anxiety and fear of the father, and that E did not display any attachment indicators given his age and the length of time he had lived with the father. The submissions refer to the acknowledgment made by the father that he had suffered a form of depression and had been prescribed antidepressants.
The thrust of the submission was that given those concerns, the trial judge should have addressed in greater detail how he came to decide that the father had the capacity to have primary care for all three children. It was noted that the trial judge found that there is “now sufficient capacity in the father to provide for the children’s needs, including their emotional intellectual (sic) needs”. However, it was argued that where the trial judge deals with those matters at various points in the judgment, it was more a commentary of hope rather than a conclusive finding that the father actually possessed sufficient parenting capacity to primarily care for all three children.
It was submitted that the trial judge gave no reasons for concluding that the father’s attitude to his parenting responsibilities improved on his return to New South Wales.
In oral submissions the maternal grandmother’s counsel described the trial judge’s finding that the father had sufficient capacity to parent as a “quantum leap” from other findings, including that of horrifying neglect. He said that his Honour was compelled to answer a number of questions about the father’s capacity to parent, as outlined in his written submissions.
By written submissions filed in his case, the father submitted that the trial judge provided reasons as to why he preferred the proposal of the father. They were:
· he successfully looked after the two little children for two years;
· it would be extremely difficult for the mother to look after two let alone three of the children;
· the father has stable, rent-free accommodation;
· the father “will be living within a hundred metres... of the paternal grandmother who, I believe, would tolerate no failings or nonsense. I also believe that such a strong woman, if she felt the children were at any risk, would quickly be on the phone to the other grandmother and work it out between them”;
· the finding that each of the parents, and the maternal grandmother had impaired capacity to provide for the emotional and intellectual needs of the children but that there is now sufficient capacity in the father to provide for those needs;
· the finding that “the attitude of each parent to the responsibility of parenthood has fallen short in the past. However I find that the point of change was when the father had to come back to New South Wales and abandoned his job, having left the children with the mother. There is no suggestion that the father ever tried to take them away from her. He was, fortuitously, forced to pick up where the mother had left off.”
It was submitted that the trial judge found that the maternal grandmother removed one child from the father’s care and had earlier been willing to help but was not able to take the three children. When she thought she would lose T she made the application that all three children live with her. The trial judge found that the father tried to keep the children together.
The father’s written submissions noted that the trial judge found that:
I do not believe the past gives me any confidence that if I were to place the children with the maternal grandmother, the placement would be successful. I would not have the same confidence that circumstances or communication would not get out of control and eventually the father would be excluded or minimised in the children’s lives.
As to the loss of the father’s drivers licence, it was submitted the trial judge considered the real possibility that the father may obtain his licence in the near future. The submissions record that the father had attended personal counselling sessions and displayed patience, positivity, calm and love in managing E’s care during his therapy session.
It was submitted that there was no evidence to suggest that the father would not facilitate a close and continuing relationship between the children and their mother and the maternal grandmother. To the contrary, it was submitted that the fact that the father sought to protect the children from conflict indicated that the father was encouraging a close and continuing relationship between the children and the other parties.
The father’s submissions note the opinion of the family consultant that for the children to live with the maternal grandmother, the mother needed to be living nearby to assist her. The trial judge found that the maternal grandmother would not encourage the children’s relationship with their father.
Discussion
The trial judge exhaustively canvassed the past difficulties the father had in parenting the children. At paragraphs 273 and 318 of the judgment, he described the effect of the father’s (and the mother’s) parenting as “horrifying”.
The trial judge set out in the judgment why he preferred the father’s proposals. He said:
299. First, he has successfully looked after the two little children for two years.
300. Secondly, it seems to me that the observations made of the mother’s dealings with the children mean it would be extremely difficult for her to look after two let alone three of the children.
301. Thirdly, the father has stable rent-free accommodation.
302. Fourthly, the father will be living within a hundred metres - I think the evidence was - of the paternal grandmother who, I believe, would tolerate no failings or nonsense. I also believe that such a strong woman, if she felt the children were at any risk, would quickly be on the phone to the other grandmother and work it out between them. That may well mean that later on the children will wish to change the arrangements as they grow older to years of discretion. Objectively the parties will know when things are improving when the children can move freely between each house with the encouragement of all and in the absence of conflict or tension.
At paragraphs 235 & 236 the trial judge said:
235. … [The father] stressed the allegations about his drug use are not true, and he had urine tests before court in May and they were all negative.
236. I have seen that certificate and it contains no evidence of drug usage.
At paragraph 317 the trial judge spoke of a change in the father:
317. The attitude of each parent to the responsibility of parenthood has fallen short in the past. However I find that the point of change was when the father had to come back to New South Wales and abandon his job, having left the children with the mother. There is no suggestion that the father ever tried to take them away from her. He was, fortuitously, forced to pick up where the mother had left off.
Starting at 325 the trial judge addressed the steps taken by the father:
325. I find the father has been extremely frank in the problems he has had and about his attempts to keep the relationship together for the children. He has had depression, he has had anxiety, he has sought appropriate help, and he has apparently benefited from that help.
326. The father has also reserved time with a psychologist for help to deal with whatever the outcome of this case is. I believe he is going to need that, because he is going to need every ounce of courage and energy to try and get these three children together as a family again; and share them with the mother, and reinforce the mother’s role with them; and share them with the maternal grandmother, and reinforce the grandmother’s role with them. It is a very, very big responsibility. Any failure, and the court or the Department of Community Services, will have to look for the next alternative. It will not come back before me, as I will have retired.
327. I find that the father will have sufficient backup right on hand, as the paternal grandmother will be close by and able to give all the help that may be needed. I find that she will do so. I believe she would give whatever proves necessary. I further believe that she would also be willing to call in the maternal grandmother. Both grandmothers described their relationships as civil, after they had been friendly. The affidavits and accusations put on in this case caused a rift, but when the embers have settled, and the orders are in place, I am hopeful that the grandmothers will again assist the parents any way they are able to.
The trial judge set out his reasons for adopting the father’s proposals.
The problem for the maternal grandmother in respect of this and indeed all grounds, is that the trial judge was required to make a decision between proposals. Firstly, at paragraph 293 of the judgment, the trial judge found that the children should live together. That finding is not challenged. Sensibly so, because:
a)the only proposals were that the children live together; and
b)the trial judge accurately noted at paragraph 228 of the judgment that the evidence in the updating Family Report was to the effect that the maternal grandmother “agreed that the three children need to live together, and they continued to be distressed at their separation”.
Secondly, the trial judge found that the maternal grandmother was not a preferred option. That opinion was supported by:
· Paragraph 66 of the judgment - the grandmothers “have other responsibilities and they have other lives”. The maternal grandmother “works prodigious hours, seven in the morning till six at night”; has other children and possibly grandchildren;
· Paragraph 221 of the judgment - the maternal grandmother told the family consultant that the children living with her was her second preference – her first was that the children live with their mother;
· the finding at paragraphs 285 and 343 of the judgment that at one point the maternal grandmother was willing to help but was not able to take all three children;
· the finding at paragraph 321 of the judgment that under the maternal grandmother’s proposal, eventually the father would be excluded from the lives of the children; and
· for reasons given by the family consultant, all of which were accepted by the trial judge, (for example paragraph 216 of the judgment) the recommendations of the family consultant contemplated only two possibilities – that the children live with the mother or with the father (see paragraphs 224 and 297 of the judgment).
This ground is not made out.
Ground 2
2.That His Honour erred on (sic) that he placed little or no weight on the Father’s recent past use of illicit drugs, and in particular how such use may pose a risk to his capacity to care for all three children in a residence arrangement.
By written submissions filed in her case, the maternal grandmother argued that there was an insufficient and inadequate analysis by the trial judge of the father’s past use of illegal drugs and how that may impact on his capacity to look after three young children. It was conceded that the trial judge identified that the father had had a serious illicit drug problem.
It was submitted that, except for a concession in relation to marijuana use and the discovery of a bong found in his home, the father did not disclose to the court the extent of this drug problem. It was submitted that, apart from providing a urinalysis report “revealing a detection of illegal drugs”, the father did not disclose to the court whether or not his drug problem was still relevant or a past trouble only. The father was cross-examined about his conviction and imprisonment relating to drug possession offences. It was noted that the father’s attendance for drug and alcohol counselling did not appear to lead to a complete curtailing of his use of such illicit drugs.
It was conceded on behalf of the maternal grandmother that the trial judge did not “in a general sense” ignore the relevant section 60CC factors. However, it was submitted that without any reasons or explanation the trial judge said “allegations of neglect or drug abuse and so on (by both the mother and father) have abated”.
In oral submissions the maternal grandmother’s counsel said that the trial judge should have been more vigilant, given the concern expressed by the family consultant, with regard to the father’s drug use. It was submitted that it was inadequate for his Honour to say that he was confident that the father’s drug use will not continue in future.
By written submissions filed in his case, the father noted that the trial judge made reference to the father’s private attendance upon C Family Practice to see a psychologist, that the father was confident he could remain drug free and that he found that the psychologist assisted him in many aspects of his life.
The father’s submissions also noted the finding made by the trial judge that the certificate relating to the urinalysis test provided by the father contained no evidence of drug use.
Discussion
At several points the trial judge referred to the use of illegal drugs by the mother and father. It was an agreed fact that both parents used marijuana and the trial judge noted the mother’s allegation that she and the father used heroin and ice.
The trial judge referred to the father’s drug taking as follows:
62. … I am of the opinion that the parents have to face the fact that their previous drug abuse has caused enormous anxiety to their parents, and enormous financial cost to their parents, even to the extent of suffering verbal abuse for what they did.
….
86. [The father’s mother], the paternal grandmother, deposed to the visit she had to the mother’s house, the condition she found it in, the photographs she produced, and the fact that gas had been cut off. Later, in cross-examination, she detailed the large amounts of money she had paid out for the children to the parents and the way that the money had been repeatedly squandered by the parents satisfying their own addiction or craving for drugs, to the great detriment of the children, themselves and their families.
….
89. As far as the drug taking is concerned, as I indicated earlier, both parents have been on drugs. The grandmothers each knew it. [The father’s mother] put it well when she said, (and she could well have, I think, included the other grandmother being in a similar position as herself), “I have the drug problem. I have to pay for it. I gave the parents money for the necessities and they squander it on drugs.”
….
105. Report dated 14 November 2006, report number 12:
“[T] not picked up from school. A staff member went to the family home, there was no answer on the phone. The staff member arrived, the door was open, baby crying, no one answered the door. An ex-student riding past stated he knew the family, went inside and woke the father up. The father presented as being under the influence of drugs with dilated pupils and red eyes. The father had his baby in his arms at this stage and was asked why [T] had not been picked up from school. The father said, ‘I thought I had friends that would be able to walk him home.’
The father stated, ‘Obviously I am not in the right state. The baby was screaming and I didn’t wake up.’ The reporter did not sight [A] and has concerns about the father’s capacity to care for the children until the mother returned, date unknown. The reporter further observed small scabby scores all over the father’s face and on his legs and she suggested it may have been due to the effects of something.”
….
111. Report of Harm number 15: Legal guardianship issues. 9 December 2007:
“The mother stated the department had prior concerns regarding both parents marijuana use. This time the mother was out of the state, has returned and there were continuing issues regarding the father’s drug use. The mother states she has since stopped using marijuana and has separated from the father. The father is reported to be living in Queensland. The mother states she looked after the children from November ’06 to October ’07. The father had casual contact with the children.
October 2007: The mother placed the children in the care of the maternal uncle. The maternal uncle had problems coping with the children and returned them to the care of the natural father. The natural father moved to a refuge with the children and refused to return the children. The natural father, allegedly, using marijuana.”
….
122. The Police records of the father can be summarised as follows:
1999 in Bankstown Local Court: drive vehicle when the licence cancelled; use uninsured motor vehicle on the road.
Bankstown Local Court, 28 November: use unregistered vehicle on the road area, not a trailer, fined $54.
2000; cultivate prohibited plant, small, fine $800 plus costs; possession of equipment for administering prohibited drugs; self-administer/attempt self-administer prohibited drug, fine $200.
2000: use unregistered vehicle on road area; use uninsured motor vehicle, fine $54 for each; drive while disqualified from holding a licence; community service order without condition, 150 hours and court costs; disqualification for two years starting 8 November 2000.
Burwood Local Court: application to revoke the community service order; 1st instance warrant; imprisonment for six weeks commencing 5 June 2002.
Camden Local Court, 2003: use unregistered vehicle on the road, fine $300; use uninsured motor vehicle, fine $300; drive whilst disqualified from holding a licence, imprisonment 4 months commencing 26 February 2003; non-parole period, 4 months; disqualification, two years commencing 8 November 2012; severity appeal and a stay lodged.
P District Court; drive while disqualified from holding a licence, convicted, confirmed, home detention 4 months commencing May 2003, disqualification for 2 years commencing November 2012, including November 2014, disqualification as a habitual offender.
April 2004: driving while disqualified from holding a licence. B Local Court: drive while disqualified from holding a licence; use unregistered vehicle; use uninsured vehicle; parole board; breach of detention/parole; home detention 1 month and 2 days.
Parramatta Local Court: bring/introduce small quantity of drug into detention centre; bond under section 9, 12 months supervision from the probation service. (These are obviously not in the same order.)
….
143. The mother’s affidavits disclosed that when she started the relationship with the father it was all roses in the beginning. Then they moved to southern Sydney. Then, she claimed, she found that he not only smoked marijuana, but also smoked heroin as well. She claims that he gave her some instead. As recorded earlier she stated: “I believe it was marijuana, heroin, and, finally, the last straw, the ice that made our relationship volatile, nasty and vicious.”
144. The mother also swore:
“I worked fulltime and was having trouble paying the bills due to our addictions, [the father] never being able to hold a fulltime job”. … (he was) “addicted to heroin or ice, but I was addicted to marijuana.”
And then she deposed:
“Towards the final end of our relationship, October/November 2006, [the father] and myself were taking ice at least once a week.”
“We would fight constantly about me going to work and him staying home. His paranoia was getting more intense due to smoking ice, accusing her in front of the children of having an affair at work”. (She claimed that the drug tended to make him “over-sexed” - and there are some submissions about that).
The mother further deposed:
“On the day we separated he became volatile and damaged the property I resided in. He punched a hole in the door in front of our two elder children, [T] and [A], and then proceeded to charge at me. I told him to leave because I was terrified I would be the next thing to be hit or worse still, one of the children”.
….
309. I find that each of the parents, and the maternal grandmother, has impaired capacity in this area. It is troubling to see that the children are not more closely attached to the father or to the mother. They have been raised in the past with, frankly, self-confessed drug addicted parents. And part of the problem with the drugs is that even if the body is there, often the addict’s mind is away. The children, I believe, are showing signs of that. Each parent must try as hard as possible, to bond with the children, and be available for their emotional needs. It can be very exhausting, but it is essential.
Nor did the trial judge dismiss the future risks in relation to drugs. His Honour said:
86. [The father’s mother], the paternal grandmother, deposed to the visit she had to the mother’s house, the condition she found it in, the photographs she produced, and the fact that gas had been cut off. Later, in cross-examination, she detailed the large amounts of money she had paid out for the children to the parents and the way that the money had been repeatedly squandered by the parents satisfying their own addiction or craving for drugs, to the great detriment of the children, themselves and their families.
87. This hearing marks the beginning of adulthood for the parents. Either they are going to be responsible parents now, or it is likely the children will be taken away. DoCS has the file. Either they rise to the challenge, getting the advice and help of the grandparents, or these children will effectively not have a mother and a father. And every child deserves a mother and a father. They also deserve two grandmothers. Part of the worry I have had about the children going to the maternal grandmother, is that she would cease being the grandmother and I find become virtually the mother. I also find with the strained relations between her and the father, which may or may not improve, the children may well lose out on seeing as much as they should of their father.
…
However, the trial judge also recorded:
174. The father considered that [the maternal grandmother] would undermine his role with the children. He believes the three children need to live with him. The father noted the children have indicated that they want to live with their mother, but he stressed that he is able to provide full- time care for them. The father claimed that he does not use any drugs now and had only had one joint at Christmas. He advised he was seeing a psychologist for his anxiety and depression.
…
237. … [The father] stressed the allegations about his drug use are not true, and he had urine tests before court in May and they were all negative.
238. I have seen that certificate and it contains no evidence of drug usage.
The trial judge was alive to the importance of drug taking as far as the father’s proposal went. His Honour set out the past and likely future impact if it continued and had a basis for optimism in relation to the father.
Therefore we reject Ground 2.
Grounds 5 & 9
5.That His Honour erred in giving too much weight on (sic) the word, ‘parent’, as referred to in italics at paragraphs 53 and 54 of his Honour’s Reasons for Judgment, and as quoted from the Family Report dated 14th August 2009.
9.That His Honour erred in not (sic) giving too much weight in (sic) the fact that the Maternal Grandmother was not a parent of the children’s (sic).
It was submitted on behalf of the maternal grandmother that by italicising the word “parent” in the judgment and not explaining why, the trial judge revealed an impermissible preference for the proposals of the father over those of the maternal grandmother. However, it was conceded that some explanation was given for preferring the father’s proposals and that the trial judge also appeared to elevate the importance of grandparents in the context of parenting orders.
In oral submissions the maternal grandmother’s counsel suggested that if the trial judge had pointed to some case authority for emphasising the word “parent’’, given that some authority exists, there would be no complaint about his Honour doing so.
The thrust of the submissions made on behalf of the father is that Part VII of the Family Law Act 1975 (Cth) (“the Act”) is inconsistent about parenting orders in favour of grandparents. It was noted that grandparents are not referred to in many of the relevant provisions – such as S60B (1), 60CC(2) and several of the 60CC(3) criteria. However, they are specifically referred to in other provisions – such as s 60B(2).
Discussion
It was apparent from the written and oral submissions that these grounds were an important part of the appeal. The maternal grandmother’s concerns arose out of the following passages of the judgment:
53.The family consultant’s opinion was that the children need stability, together with a responsible and effective parent (my emphasis) that could meet their emotional attachment and developmental needs.
54.The children, he said, need to live together in the least harmful and most stable environment with a parent who can facilitate the children to spend more time with the other family members. Whichever parent, the children will need the support of the grandparents.
In our view, it cannot be said that the trial judge put too much weight on the word ‘parent’.
The trial judge correctly identified three proposals:
266.In the end the matter resolved into competing applications for the three children to be together, and to live with the mother, the father, or the paternal (sic) grandmother in Sydney.
Of the s 60CC considerations that refer only to parents, his Honour included reference to the maternal grandmother under each of s 60CC(2)(a), 60CC(3)(c), (e) & (i).
At paragraph 334 his Honour emphasised that he included the maternal grandmother in his consideration of the ‘parents’ taking part in long term decisions about the children.
The subject matter of paragraphs 53 and 54 was the opinion of the family consultant. Those paragraphs do no more or less than record the preferred options cited by the family consultant and his recommendations. True it is, as did the family consultant, the trial judge has ultimately preferred the proposal of a parent over that of a grandparent. However it cannot be fairly said that the trial judge did so because of a general preference for making parenting orders in favour of parents rather than other applicants. His Honour went to some lengths to include the maternal grandmother in his considerations.
In their submissions the parties addressed the issue of applications for parenting orders by persons who are not parents. It should perhaps be recorded that, as the trial judge demonstrated and as this Court has previously held, the Act does not establish a hierarchy of applicants for parenting orders. See Aldridge & Keaton (2009) FLC 93-421.
We reject the challenges embodied in Grounds 5 & 9.
Ground 7
That His Honour erred in giving too little weight if at all, to the Maternal Grandmother’s concerns relating to the Father’s care of the children.
By way of written submissions the maternal grandmother argued that, while the trial judge noted that the maternal grandmother had expressed concerns about the father’s capacity to care for the children, he placed too little weight on the reported allegations and should have “been more vigilant in ultimately determining that the Father had the sufficient parenting capacity”.
In the submissions made on the father’s behalf it was pointed out that the trial judge did not accept as evidence of the fact, bare allegations made to the authorities over time. The trial judge accepted the evidence of the family consultant, who said “[The maternal grandmother] would be a most appropriate and a significant support for the children with either parent. However, it is assessed she would not be able to provide for the long-term care of the young children.”
By the father’s submissions it was noted that the trial judge squarely addressed the fact that he would not rely on anonymous and partisan reports and would decide the case on the evidence before him.
Discussion
The trial judge identified the maternal grandmother’s concerns. Starting at paragraph 162 of the judgment the trial judge referred to what was said to the family consultant:
162. First of all, the maternal grandmother made the allegations which she has set out before, that the children always seemed very hungry when they came to her, and thirsty. She stated:
“They need proper food, drink, and proper love and affection, and they are not getting it from their father.”
163. She claimed the children were often dirty and unwashed. She takes them home, bathes and showers them. She further claimed that their clothes were often dirty when she washes them. She considered [the father] did not have the ability to care for the three children for the long-term. His history of drug use and continuing housing instability were serious issues. She claimed that he does not supervise the children, he is often at the computer, and is not a responsible carer. At this time the children had had fleas in their hair, bites, and bruises. [E] had fallen off a veranda and hurt his face. She thought [the father] was verbally abusive of the children, and she thought [A] and [E] were scared of him.
“He yells at them and smacks them.”
164. The maternal grandmother would love all three children to live with her, and she knew she can care for them. [T] has been there 15 months, and is a healthy boy, happy and settled at school.
“If they go with their mum, I will support her and move to Melbourne to assist her to care for the children. I would be worried sick if they were with their father, I would need to see them regularly to make sure they are well.”
165. She believed that the children should be with their mother, and both [T] and [A] wanted to live with the mother. “It is just sad,” she said:
“It is breaking my heart to see how they are affected by all this, and what is put in their heads by the father. He is not a good role model.”
166. She believed that [the father] has the children to meet his own needs, he does not understand the children’s needs, and questioned if he had the capacity, or wanted to meet their needs. She said:
“No doubt [E] loves his dad, but he is missing something with him. Missing love, affection, cuddles, and mothering that he needs.”
167. And she was concerned that the children were left alone for some time in a local pub. (There is other evidence that [the father] does not drink, so I do not know where that allegation came from). And then she said [T] said to her:
“If I didn’t say I wanted to live with dad, he’d knock my head off.”
168. [T] also said that if he had to live with his father, he would run away, and he would ring her to come and get him.
Later his Honour said:
225. Mr [O’s] final report, of 14 August 2005, I quoted from a little earlier. Therein he recorded the maternal grandmother’s continuing concerns. She believed the three children need to live with their mother, (and that is the children’s wish), but the mother needs to make a commitment to the care of the children. She noted [the father] had moved about six times since [A] and [E] had been in his care, and he currently lives with his mother and stepfather. She believed the paternal grandmother has the major care of the children.
226. At this juncture, I do not, so find. On the evidence I heard and accept, I find that the paternal grandmother was pretty frank when she stated that she loved her bed, whilst the father cared for his children, but she did do the driving of the children to school. The evidence also shows that since she has been doing that, the children have only been late once to school. Their attendance record whilst the father previously was on his own was not acceptable.
227. The maternal grandmother stressed, “I am here for the kids. If … (the mother) can’t be, I’ll be available for them.”
228. The maternal grandmother agreed that the three children need to live together, and they continued to be distressed at their separation. She noted her concerns that [the father] was still using drugs and smoking marijuana, as reported by the children. She comments that the children often indicate [the father] is not always there at weekends and they are placed with the paternal grandparents. She recalls the children have a good relationship with the paternal grandmother, and that the latter provides all the support for [the father] and her grandchildren. She noted the children reported they spend many weekends with their grandparents at their holiday house. She considered [the father] would need his own accommodation.
As to the weight given to those concerns, true it is that the trial judge ultimately favoured the father’s proposal. However, in doing so he did not ignore the unsatisfactory parenting performance of the parents and in particular, that of the father. The trial judge quoted the opinion of the family consultant:
The issue remains the children need to live together in the least harmful and most stable environment, with a parent who can facilitate the children to spend time with other family members.
At paragraph 287 he says:
287. … As recommended by the Family Consultant I find that the children should be with a parent either the mother or the father, and further that whichever it turns out to be, mother or father, support by the respective grandparents, offers the best, or least worst outcome for all three children.
The trial judge did not represent the father’s proposals as ideal. The trial judge was required to identify the best of the proposals and has adequately explained how he came to his conclusion.
This ground is not made out.
Ground 8
That His Honour erred in giving too much weight on (sic) the Father’s dependency on his own mother to assist him with the future care of the children.
It appears from the written submissions that the gravamen of this ground is:
· The Court’s preference for the father’s proposal was based on the significant support he would receive from his mother;
· There was no evidence that that support will be sufficient or ongoing;
· Although the father has given evidence about his relationship with his mother, she did not give that evidence;
· The maternal grandmother is said to be a back up to the paternal grandmother;
· If she is a back up then she must have capacity;
· There was no evidence of the relationship between the grandmothers;
· In effect the trial judge simply preferred one grandmother over the other, without giving sufficient reasons; and
· It was appropriate for the trial judge to have regard to the support of the paternal grandmother but he placed too much weight on that factor.
In oral argument the maternal grandmother’s counsel submitted that if the trial judge took the view that the father and paternal grandmother were the best option for the children, as far as where they should live, his Honour should have gone further to explore matters such as the relationship between the father and his mother and whether or not they would continue to live in close proximity to each other.
In the written submissions on behalf of the father, it was noted that the trial judge said:
The paternal grandmother has already outlayed a lot of money to keep the parties afloat (and the maternal grandmother has also contributed), but that is only one aspect of her help. A lot of effort and disruption to her life has contributed to achieving the best option for the children and I am of the opinion that she has the capacity and time to oversee these orders and the firmness of character to ensure the well being of her grandchildren in their parenting by the father.
Discussion
It is contended that the Court placed too much reliance on the proposition that the father will be assisted by his mother in caring for the children.
At paragraph 226 of the judgment the trial judge referred to the involvement of the paternal grandmother:
226. Mr [O’s] final report, of 14 August 2005, I quoted from a little earlier. Therein he recorded the maternal grandmother’s continuing concerns. She believed the three children need to live with their mother, (and that is the children’s wish), but the mother needs to make a commitment to the care of the children. She noted [the father] had moved about six times since [A] and [E] had been in his care, and he currently lives with his mother and stepfather. She believed the paternal grandmother has the major care of the children.
227. At this juncture, I do not, so find. On the evidence I heard and accept, I find that the paternal grandmother was pretty frank when she stated that she loved her bed, whilst the father cared for his children, but she did do the driving of the children to school. The evidence also shows that since she has been doing that, the children have only been late once to school. Their attendance record whilst the father previously was on his own was not acceptable.
The trial judge acknowledged the assistance provided to the father by his mother. While noting the importance and necessity of that assistance, the trial judge also noted the limits of that assistance.
We thus reject the challenge embodied in Ground 8.
Grounds 10 & 11
10.That His Honour erred in not giving adequate weight to the expressed views of the children.
11.That His Honour erred in not giving any consideration, or very little consideration, to the impact upon the child [T] in relation to a separation from his Maternal Grandmother.
In the written submissions on her behalf it was argued for the maternal grandmother that although the children expressed a preference for living with their mother, T ranked living with his father third behind living with his mother and maternal grandmother.
It was submitted that the older children consistently opposed living with their father and that their wishes and particularly those of T should have been given more weight. It was submitted that the trial judge should have give clear and cogent reasons for rejecting their wishes.
Further, it was submitted that the trial judge failed to explain how the separation of T from his grandmother, after living with her for nearly two years, would impact on him.
In the submissions of the father, it was noted that the trial judge did not place great weight on the children’s wishes because the expressed wishes of the older children changed during their interviews with the family consultant. It was submitted that the trial judge had to consider three likely options:
1. Place the children with the father. In this case, [T] would need to relocate from the maternal grandmother's home which would result in a change of school.
2. Place the children with the maternal grandmother. In this case [A] and [E] would need to relocate from the father’s home which would result in a change of school for [A]. In this case His Honour is dealing with a child who has lived with the father since the age of one.
3. Place the children with the mother. In this case all three children would need to relocate, and two children would need to change schools.
It was submitted on behalf of the father that all of the options would result in at least one child changing schools and residence. It was submitted that by placing the children with the father the trial judge caused the least disruption, as two of the three children were already settled at the father’s home.
It was submitted for the father that the trial judge did consider the impact of separation of the children from their primary carers.
Discussion
Starting at paragraph 193 of the judgment the trial judge referred to the wishes of the children as expressed to the family consultant:
193. [T] was interviewed on his own, aged eight years and six months. He had lived with his grandmother for 18 months. He said, “I get to speak to mum every Friday and Tuesday. I really miss her, and am very sad about that. She starts crying and said she really misses me too.” He does not see his mother often, as she does not come up from Melbourne. He saw her for two weeks during the Christmas holidays.
194. [T] reported he liked living with his grandmother. She helps him with his homework and tells him stories about when she was a kid.
195. [T], when asked, replied he liked living with his father, “as we just go to a netball place and drive around with his hobby car, and I ride my bike sometimes with friends.”
196. [T] was asked what he liked about living with his mother, and he smiled, looked happy, his demeanour changed and he replied, “I just like it with mum.”
197. [T] was then asked if there was anything he did not like about living with his grandmother, father or mother. He commented that there was nothing he did not like about living with his grandmother, but he said, “I have been living with my Nan for a while, and I would rather live with mum or dad.”
198. [T] said that what he did not like about living with his father was, he had to play out the back, “and when I asked to ride my bike out the front, he says no.”
199. [T] noted there was nothing he did not like about living with his mother.
200. [T] was asked if he had three wishes, what they would be, “My first wish, to live with my mum. If I couldn’t, I would wish to live with my dad. If I couldn’t, I would live with my nan.”
201. One week later, when [T] was again interviewed, after having been with his mother, he stressed that he wanted to live with his mother. He said that now he wished first to live with mum, then second with dad, and third with Nan. He commented that when he said his wishes before, he was scared of his father and what he would say if he heard his wishes. He said, “He will get really angry next time I see him. Like, he will think a little and start talking and get a little stressed, and then get angry.” Having seen his mother again that day, he really wanted to live with his mother, but he still wanted to see his father, and his grandmother.
202. Six and a half year old [A] said, “When I get into trouble with nan she usually taps me on the forehead and pulls my hair, but [T] gets into trouble most. With dad, he smacks you and yells at you. But mum does not do anything. She usually gives me lollies, but we are not allowed to swear or say ‘Shut up’. But [E] swears.”
203. Asked what she liked about living with her father, she said, “He gives me toast and gets me what I like. I like mummy the most, and she does not swear, and lets me watch movies. I like nan because she usually lets me watch TV when I go there.” She loved horses. “Mum is going to get me a real horse shoe, in the Love Heart show. Mum is not mean, and lets me play out the back.”
204. What she did not like about living with her father was that he yells at her: (he) “keeps yelling, and spits at me, and smacks me on the bottom and on the leg.”
205. [A] commented she did not like her grandmother, “because she taps me on the forehead and pulls my hair, and I don’t like her telling on dad.”
206. [A] noted there was nothing she did not like about her mother.
207. Asked if she had some wishes, [A] said, “I would love to have a horse here, not in [G]. I wish I had a very pretty house. I wish everyone was not mean to me. Nan is sometimes, and once I told her I hated her because she stole [T], and I just want [T] back. My real wish is to live with my mum.”
208. A week later, after having time with her mother, [A] was again interviewed. She said mum was angry “because [T] and me were being rude and saying naughty things. [T] said ‘friggin’, and I said, ‘Shut up’ and ‘friggin’ too. I was just – I want to live with her.”
209. [A] did not want her father to get into trouble, but she was worried about saying that he gets angry and smacks her. She noted if she could not live with her mother, “If not with mum, then live with grandma, ‘cause she is nice. I will miss him, but still say hello when I ring him, and might go and visit him. I want to live with mum wherever she moves. When mum comes over, if I can sleep over at nan’s, have a sleepover with dad, then go back to nan’s and then go back to live with mum.”
At paragraph 250 & 251 of the judgment the trial judge again referred to the wishes of the children expressed to the family consultant:
250. The children were then interviewed by Mr [O]. [T] expressed his view he wanted to live with his mother, and if not with his mother, he wanted to live with his grandmother. He indicated he wanted to live with his mother in Sydney so he can continue to spend time with his grandmother and father.
251. [A] expressed her view she wanted to live with her mother, “Because I really miss her, and I get scared because she’s pretty and something might happen.” She wished she was, “a big girl, so I could do whatever I wanted.”
The trial judge succinctly dealt with this matter under s 60CC (3)(a) as follows:
280. I have stated the wishes sufficiently. The children want to live with their mother. They have changed, whether they want to live with their dad next, or their grandma next. But overweighing what the wishes are - there are none from [E] - is the need to keep the three children together. Considering the ages of the children and complexity of the issues, I do not accord a great deal of weight to their (changing) wishes.
It should be noted that the wishes of the children recorded by the family consultant do not consistently favour the children living with the maternal grandmother. Therefore, whatever else might be said about them, the wishes did not support the maternal grandmother’s case.
As to T missing the maternal grandmother, it cannot be said that the trial judge gave no consideration or little consideration to this issue. The trial judge found:
293. I find that whilst no solution may be perfect, there are many strong reasons why the children should be brought together again and the three of them live as a family unit.
294. I believe [T] will find this difficult. I believe that [T] will act out. I believe that [T] must be treated with an enormous amount of care and respect. I also apprehend that [A] will find her nose is out of joint as well when she resumes living with an older sibling, but I can see no other acceptable way in which the three children can be united and kept together throughout the rest of their childhood.
…
297. [T] I think would miss his school and, yes, he would have to enter a new situation but he, too, wants to be with [A] and I see no other practical way which, in the short and long term, would achieve the object that the family consultant recommended. He has recommended that all three children should live with one parent or the other.
The trial judge accepted that the children should be together. The trial judge noted that the maternal grandmother has been ambivalent about all of the children living with her. The trial judge noted that the relationship between the maternal grandmother and the mother is problematic and that the maternal grandmother has no relationship with the father. It follows in those circumstances why the orders did not provide for [T] to live with the maternal grandmother.
We reject the challenges embodied in Grounds 10 and 11.
Grounds 12 & 13
12.That His Honour erred in not giving sufficient weight to the opinion evidence of the Family Consultant, Mr [O], that the Father would limit children’s contact with their Mother and Maternal Grandmother.
13.That His Honour erred in making a finding that the Father would be sufficiently willing and able to facilitate and encourage a close and continuing relationship between the children and their Mother and Maternal Grandmother.
In the written submissions prepared in her case, it was argued for the maternal grandmother that the trial judge ignored the family consultant’s concern:
… that [the father] would limit the children’s contact with their mother and their grandmother and would not encourage their relationships.
It was submitted that the trial judge found that the father would be the most likely of the three parties to the proceedings to promote a relationship with the mother despite the unchallenged views expressed by the family consultant. It was submitted that nevertheless, the trial judge did not find that the father would be likely to promote a relationship with the maternal grandmother.
In the submissions prepared on his behalf it was argued for the father that the report of the family consultant did not support the submissions made on behalf of the maternal grandmother. It was submitted that the father’s comments about the problems experienced at changeover are consistent with the father seeking to reduce the exposure of the children to conflict. In that way, it was argued that he was promoting their relationships with the mother and grandmother.
It was noted that at one point the family consultant records that the first preference of the maternal grandmother was for the children to live with their mother. The family consultant considered and the trial judge accepted, that the maternal grandmother would not encourage their relationship with the father. The trial judge found that the father had shown a willingness to allow the mother to have the children each time he moved out of the house and did not try to use the children as a lever or to remove or withhold them inappropriately.
Discussion
This complaint ignores the adoption by the trial judge of the conclusion reached by the family consultant in his first report, which is recited at paragraph 253 of the judgment:
…
“It is considered [the mother] might not be able to manage the three children with their growing behavioural issues, and provide for their significant emotional needs without the support of her mother.
Likewise, if the three children live with their father, their emotional and developmental needs, it is considered, would not be adequately met without the support of his mother and stepfather.
[The maternal grandmother] would be a most appropriate and a significant support for the children with either parent. However, it is assessed she would not be able to provide for the long-term care of the young children. If the children were to live with [the maternal grandmother], that arrangement might result in conflict or estrangement from [the mother], and would not be a workable arrangement with [the father]”.
He concluded:
“The children need stability, together with a responsible and effective parent that could meet their emotional attachment and development needs. That is the dilemma, with the history of this dispute and the impact on the children. The issue remains the children need to live together in the least harmful and most stable environment, with a parent who can facilitate the children to spend time with other family members. With whatever parent, the children will need the support of the grandparents.”
His Honour was only too aware of the problematic relationships between the parties. He addressed the issue squarely. It cannot be said that he did not give weight to the issue of whether the father would promote the relationships between the children and the mother and maternal grandmother. We therefore reject the challenges embodied in Grounds 12 & 13.
Conclusion
We have determined that the trial judge gave appropriate weight to those considerations found to be relevant. It is not asserted that he took into account any irrelevant considerations. He made no errors in making findings of fact. On the findings of fact not only is the decision he made within the range of reasonable discretion, it was arguably the only possible decision. It follows that the maternal grandmother’s challenge to the decision must fail and we will dismiss the appeal.
Costs
At the conclusion of submissions in relation to the appeal the parties were asked to address the issue of costs. Learned counsel for the maternal grandmother said that in the event that the appeal succeeded, his client would seek costs against the father.
In the event that the appeal was unsuccessful, she would expect that, if the (now self-represented) father has incurred costs associated with the appeal, a costs order would be made against her.
Counsel later noted however, that his client is in receipt of a grant of legal aid, has a very modest income and owns no real estate. On that basis it was asked that there be no order as to costs.
The father said that if the appeal was successful he would resist the making of a costs order against him. If the appeal is unsuccessful he would seek costs against the maternal grandmother.
Section 117 of the Act deals with costs. It relevantly provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Without objection, information about the parties’ financial circumstances was given from the bar table. The father is in receipt of Centrelink benefits including a single parent pension and a family tax benefit. He does not receive child support payments from the mother. The father says that he owes his former solicitors $20,000. They have taken proceedings for recovery of the fees and he has settled a payment plan with them.
Although he was asked to identify whether those costs relate to the appeal proceedings, we are unsure as to whether all or any of the $20,000 relates to the appeal. Certainly legal work was done in respect of the appeal. For example, the father’s counsel prepared the written summary of argument to which we have referred.
The father does not have paid employment. At some point after the hearing at first instance his drivers licence was restored. He has recently secured a licence to drive trucks. We take it that at some point he anticipates obtaining paid employment.
The maternal grandmother has part-time employment. She earns about $900 per fortnight. The maternal grandmother is in receipt of a grant of legal aid. There is no evidence about the terms of the grant.
The father is not in receipt of a legal aid grant. We were somewhat surprised to learn that only the maternal grandmother had a grant of legal aid.
Here, the parenting orders were the result of a well reasoned judgment that thoroughly canvassed the presenting issues. It seems perverse on the information available to us that the successful party under such orders would not be assisted to defend them in circumstances where his financial position appears no better, and arguably worse, than that of the party who was legally aided. We do not know, however, whether the father sought legal aid, nor are we aware of the information provided by the grandmother to the legal aid authority when successfully applying for legal aid.
Nothing was put before us in relation to the conduct of the proceedings or about written offers of settlement.
The maternal grandmother was wholly unsuccessful.
Depending on the terms of the grant, the fact alone of her achieving a grant of aid suggests that the maternal grandmother is not in robust financial circumstances.
On the other hand the father has only Centrelink benefits for income, three children to support, a substantial debt arising from the parenting proceedings and has been put to the costs of an unsuccessful appeal.
On balance those circumstances warrant an order that the maternal grandmother contribute to the costs of the appeal incurred by the father.
The difficulty we perceive is that neither party can realistically afford to pay the costs associated with this appeal. Nevertheless, it would seem to be an unjust outcome for the father to be left responsible for all of his costs in successfully defending the appeal merely because the maternal grandmother would have difficulty making a contribution to those costs.
In our view the proper order is that the maternal grandmother pay one half of the father’s costs of and incidental to the appeal, as agreed or as assessed.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Loughnan JJ) delivered on 6 September 2011.
Associate:
Date: 6 September 2011
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