SHEPPARD & SHERWIN & ANOR
[2017] FCCA 1460
•27 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEPPARD & SHERWIN & ANOR | [2017] FCCA 1460 |
| Catchwords: FAMILY LAW – Trial directions – application made by Paternal Grandmother in relation to children – parents want to have no contact with Applicant – whether a family report is necessary – matter fixed for trial without requiring a family report – impact of proceedings on children. |
| Legislation: Family Law Act 1975, ss.60B, 61B, 69ZN(3) |
| Cases cited: Church & Overton and Anor [2008] FamCA 953 |
| Applicant: | MS SHEPPARD |
| First Respondent: | MR SHERWIN |
| Second Respondent: | MS SHERWIN |
| File Number: | MLC 11964 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 22 June 2017 |
| Date of Last Submission: | 22 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Cantwell Family Lawyers |
| The Respondents in person |
ORDERS
The application be fixed for trial on 3 November 2017 at 10:00am with an estimated hearing time of 1 day.
The affidavits filed by or on behalf of the parties stand as evidence in chief at the trial.
Any party wishing to file further affidavit evidence shall do so by filing same by 4pm 13 October 2017.
The minute of proposed final Orders of the Applicant filed on 23 June 2017 stand as the relief sought by the Applicant.
Costs reserved.
AND THE COURT NOTES THAT:
A.There is no requirement for the parties to file an outline of case in this proceeding.
IT IS NOTED that publication of this judgment under the pseudonym Sheppard & Sherwin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11964 of 2016
| MS SHEPPARD |
Applicant
And
| MR SHERWIN |
First Respondent
| MS SHERWIN |
Second Respondent
REASONS FOR DECISION
Introduction
The applicant is the grandmother of X, born (omitted) 2004, and Y born (omitted) 2010 (‘the children’). Because of a substantial estrangement between the applicant paternal grandmother and the respondents, she has not seen the children and the respondents for about three years.
The paternal grandmother seeks final orders in the terms filed on 22 June 2017, which include orders for the children to spend time with her every six weeks, on the day prior to birthdays and at Christmas time. She also seeks orders that she be permitted to communicate with the children by telephone once per fortnight and that she be permitted to send cards and gifts to the children and the parents are to ensure that those gifts and cards are provided to the children and that such gifts and cards have been sent by the grandmother. The respondents oppose the orders sought by the grandmother.
This matter came before the Court on 22 June 2017 for mention as a result of orders the Court made by consent on 28 February 2017. Those orders provided in substance for the parties and the children to enrol with the children and participate in reportable family therapy at a cost to be shared equally between the applicant and the respondents, with such therapy to occur by 7 March 2017. An order was also made for the parties to attend a child inclusive 11F conference on 2 June 2007.
The child inclusive conference memoranda to the Court prepared by a family consultant dated 13 June 2017 indicated that the family therapy had not been conducted. The report stated:
Although the parties consented on 28 February 2017 for the children who attend upon reportable family therapy at the Family Relationship Centre in (omitted), this has not yet occurred, for disputed reasons. It was noted that there had been some confusion in the grandmother enrolling in the wrong service, and the parents thereafter cancelled their appointment given the increasing costs to them within the current proceedings, which they claim had become untenable.
The parents and the children did not attend the 11F conference however it is apparent that the family consultant spoke with the mother for the purposes of preparing the memoranda to the Court. The memoranda recorded that:
The mother cited that the parents had made a joint decision to actively protect their children from the paternal grandmother, by restricting their relationship. Thus, they are not supportive of the children spending any time with Ms Sheppard. The mother did however concede that she would agree to pass on any cards/gifts/letters to the children as she had done in the past (on one occasion).
When the matter was before the Court on 22 June 2017, the parents appeared unrepresented and the paternal grandmother was represented by Ms Cantwell, solicitor. At the mention, the parents were adamant that they wished not to have anything to do with the grandmother and did not wish their children have anything to do with her save that they would pass on gifts and cards as they were sent. The submissions were made by the parents with some force and the extent of the estrangement was apparent from their point of view. They did not wish to engage in family therapy either by themselves or with their children. They did not wish to attend any further Court events, they did not wish to have their children involved through seeing a family report writer, and they regarded the claim made by the mother as destructive and a cause of great personal and financial angst to them. Those submissions reflected the evidence given in their affidavits.
In discussion with Ms Cantwell in relation to dealing with the matter, Ms Cantwell wished the matter be listed the hearing and sought orders for a family report to be obtained. The Court raised, in direct terms, concern that where the parents were actively and conscientiously looking after the children and had themselves formed the view that interaction between the children and the applicant was not in their best interests, whether there was efficacy in the proceeding beyond obtaining orders that the parents pass on gifts and cards when sent by the grandmother. Ms Cantwell stated that she had instructions to proceed with the application and wished for the Court to appoint a family consultant in order to prepare a family report for the purpose of a trial. I reserved my decision in relation to that matter. The matter is listed for hearing on 3 November 2017 for one day. I stated that I would consider the submissions made by Ms Cantwell and make orders and give reasons. These are that those reasons.
I have considered the leading authority in relation to the position of grandparents under the Family Law Act 1975 (‘the Act’) being Church & Overton and Anor [2008] FamCA 953 (‘Church & Overton’) (Benjamin J). That decision is directly relevant to the matters I must decide, and provides a detailed and comprehensive commentary on the relevant provisions of the Act being 61B(1) and (2).
The decision notes at [42] the presumption of shared parental responsibility only applies to parents. At [43], Benjamin J stated:
Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, Courts should be cautious about interfering with that exercise of parental responsibility. In general, parents know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that Courts take over the role of parents.
At [56] his Honour referred to section 60B(2) of the Act which provides the principles underlying the objects in parenting proceedings, which includes children having a right to spend time on a regular basis with, communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives) His Honour stated that the principles:
…are expressed in the negative in that they apply “except when it is contrary to the child’s best interests”. This means that parents ought to be left to parent their children according to those objects unless is established that it is not otherwise in the best interests of the child.
In my view, the level of estrangement which is evidenced in this case is not dissimilar to that referred to in Church & Overton. In that case at [130] Benjamin J stated in relation to the need for a family report:
[130] The views of the children are not known. These proceedings were conducted under Div 12A of Part VII of the Act and in preparing for hearing there was discussion about the need for a family report. Section 69ZN(3) sets out one of the principles for conducting child related proceedings in that:
… the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
[131] The parents did not want contact between their children and the grandfather; they had adopted that approach from Easter 2000. To have ordered a Family Report, in the factual and legal circumstances of this case, could have adversely impacted upon the children and as such the parties agreed to or acquiesced with that approach.
[132] In view of the ages and maturity of A, B and C I am satisfied that their views would not be of assistance in this determination.
His Honour concluded in relation to this matter:
[134] There are no current issues of family violence nor are there any relevant family violence orders applicable to the children or members the children’s family. Thus the other primary consideration to be taken into account when determining the children’s best interests is not relevant.
Similarly in this case there is no evidence that the children are not being loved and well looked after by the parents. I am also of the view that given the age the children their views are not relevant to this application for the same reason as those expressed by Benjamin J.
I do not see the need for a further 11F report. The report has canvased the views of the grandmother and the mother. The evidence of these parties are set out in affidavits which been filed in the proceeding.
I will make orders that the evidence filed thus far be evidence in the trial save where any party wishes to file further affidavit material. If any party chooses to file a further affidavit material, such material ought be filed and served 21 days prior to 3 November 2017. The Court does not require outlines of case to be filed in this matter. Otherwise I strongly urge the applicant and her legal representatives to read the decision of Church & Overton closely as it is directly relevant to this proceeding.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 27 June 2017
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