Venkatesan & Pawar - [2007] FMCAfam 1109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VENKATESAN & PAWAR

[2007] FMCAfam 1109

FAMILY LAW – Parenting order – application by maternal aunt and uncle – standing to apply – whether in best interests – costs.

Family Law Act 1975, ss. 60B, 60CC, 65C, 117

C v G [2006] FamCA 994
Kam v MJR [1998] 24 Fam LR 656; FLC 92-847
J and M: Residence Application [2004] 32 FamLR 668; FMCAfam 656

Applicant:

MR & MS VENKATESAN

Respondent:

MR PAWAR

File number:

PAC 6290 of 2007

Judgment of:

Altobelli FM

Hearing date:

7 December 2007

Date of last submission:

7 December 2007

Delivered at:

Parramatta

Delivered on:

7 December 2007

REPRESENTATION

Solicitor advocate for the Applicant:

Mr Silva

Solicitors for the Applicant:

Silva Solicitors

Solicitor Advocate for the Respondent:

Ms Smythe

Solicitors for the Respondent:

Watts McCray

ORDERS

The maternal Uncle’s Application filed 16 November 2007 be dismissed.
The Applicant pay the Respondent’s cost of $500 within 28 days of today’s date.

THE COURT NOTES THAT:

The child N born in July 2000, has regular telephone contact with the maternal grandparents.
The father undertakes to the Court that he will negotiate with the maternal grandparents in good faith for the child to spend time with the maternal grandparents during their visit to Australia during 26 December 2007 to 28 January 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 6290 of 2007

MR & MS VENKATESAN

Applicant

And

MR PATIL

Respondent

REASONS FOR JUDGMENT

Ex tempore

This application which was filed on 16 November 2007 relates to a seven year old child N whose circumstances have been very sad, indeed very tragic. She lost her mother at birth and she has been raised by her father with the assistance of extended family since that time.
She comes from a cultural background which is known the world over for its strong emphasis on family values. I use this term not in the Western “nuclear” sense, but family in the sense of the extended family. I, for one, have always regarded that as something that is to the enormous benefit of a child. I think one of the best things that can happen to her is that she has the benefit of an extended family.
The application however is brought by her maternal aunt and uncle. They are seeking to spend time with the child this coming Christmas. The evidence indicates that the last time that there has been any physical contact between the child and the applicants is about two years ago. However, the material indicates that when she and her father came back to Australia in 2006 that there had been some form of communication between them up until that date.
The father, who is the respondent in the proceedings, sets out in his evidence the circumstances of the child and his own circumstances since coming back to Australia in May 2006. Amongst other things, he says that he moved to Sydney and resided in their current home at P since the 27 May 2006. I specifically refer to this because one of the submissions made on behalf of the applicants is that they could not find him and that was one of the reasons why it was necessary to bring the application at this particular point in time.
The respondent raises a technical issue but an issue which the respondent is entitled to raise, and that is that the applicants lack standing. Section 65C of the Family Law Act specifies who may apply for a parenting order:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
It is apparent to everybody concerned that it is paragraph (c) of that provision that is the relevant one. Therefore, a parenting order in relation to a child may be applied for by “any other person concerned with the care, welfare or development of the child.”
The submission on behalf of the applicant in relation to this particular paragraph was that it was satisfied on the facts of this case. The definition of "any other person concerned with the care, welfare or development" always depends on the facts of the case. So on the facts of this case, for this particular child, the submission was that having regard to the tragic death of her mother and the extended family that has been involved in raising the child, under the circumstances it was appropriate for the aunt and uncle in this case to fall within that particular category.
The problem with that submission is that whilst it meets I think the technical terms of the paragraph, I do not think it meets what the paragraph was intended to achieve. That is best demonstrated by looking very briefly at the cases that have been decided pursuant to this section: those cases being Kam v MJR [1998] 24 Fam LR 656; FLC 92-847, also re J and M: Residence Application [2004] 32 FamLR 668; FMCAfam 656.
Now, what is interesting about all of these cases - and the cases go from a broad view of that paragraph to a limited view of the paragraph - what is interesting about these cases is the common feature. That is that there has to be some relationship between, or involvement with, the child in a meaningful sense in order that the person who makes the application can have standing. And on the facts of this case the evidence filed by the applicants does not indicate that (see paragraph 22 of the affidavit of the applicant filed 16 November 2007.)
Now, that might seem like a harsh result, especially when one senses that really what this case is about is the child having time with her grandparents who are also coming to Australia for Christmas. I cannot help but get the feeling that the application by the maternal aunt and uncle was really a vehicle by which the child would have time with her grandparents.
In any event, when one goes back to what this section is all about, it is about protecting children against the stress that would be caused by spending time with people who are, for all practical purposes to her, strangers, or almost strangers. This is a child who has already had a tumultuous life. She has lived in at least two countries. She has experienced the death of her natural mother. She has experienced changes in the person who has been, for want of a better word, a substitute mother for her. I have to be concerned, very concerned, about protecting her from further stress in her life. She is seven years old, she has already had enough stress in her life and my concern for her is that if I had granted the application I would be exposing her to an additional stress in her life.
I note that the father has offered an undertaking that he will negotiate with the grandparents in good faith for the child to spend time with them when they are in Australia. I note that they will be coming to Australia on 26 December this year and leaving on 28 January and I note that the maternal grandparents are in telephone communication with the child. The fact that they have been in telephone communication with the child means that when she meets with her grandparents she is going to be meeting somebody who she has had some form of relationship with, some form of communication with and that is why I am not at all concerned about that. And indeed, as I mentioned to Ms Smythe, if this application had been brought by the grandparents, we would not be here this afternoon because clearly they have a standing as stipulated in the Act. The application fails on the preliminary issue of standing.
In children’s cases it worries me when I make decisions on technical issues. It worries me that I am making this order. But Mr Silva I think, quite properly, referred me to s.60CC of the Family Law Act. Section 60CC sets out how a court determines what is in a child's best interest. It refers to primary considerations and additional considerations. And I say this, for this reason, because even if I am wrong on the threshold issue of s.65C, I think this application would have failed by reference to s.60CC (2)(a) because that says:
The primary consideration is the benefit to the child of having a meaningful relationship - - -
And it says:
- - - with both of the child's parents.
For my part, in other cases I have interpreted that to mean other people who are interested in her life (see e.g. s.60B(2)(b). It talks about a meaningful relationship. The case law clearly tells me that I should not assume that a meaningful relationship exists (C v G [2006] FamCA 994). I need to firstly satisfy myself there is a meaningful relationship and that therefore there is a benefit to the child of having that. In this case the evidence does not satisfy me that there is a meaningful relationship and therefore I would have been very, very cautious indeed about making orders in terms of that sought by the applicant. So even if I am wrong in making what is essentially a technical decision, when I go back to the basis on which I would have made the substantive decision, I probably would have came to the same conclusion.
It leads me to the result where I dismiss the application that was filed on 16 November 2007. I note however the child's maternal grandparents are in telephone communication with her on a regular basis. I note that the child's maternal grandparents are coming to Australia between 26 December 2007 and 28 January 2008 and I note the father's undertaking to the Court that he will negotiate with the grandparents in good faith for the child to spend time with them whilst they are in Australia.
I have before me an application by the successful respondent for the applicant to pay his costs in the sum of $1875. Firstly dealing with the question of the quantum of costs; it is by no means an excessive figure to ask for. This particular application is dealt with by reference to s.117(2)(A) of the Act and it is quite possible that if I were to make a decision by reference to those matters only I would be compelled to make an order for costs.
However, paragraph (g) says I can take such other matters as the Court considers relevant. Let me “worry out loud” before both the applicant and the respondent. My worry is that in proceedings relating to a child an order for costs could easily be seen as rubbing salt into the wound and in fact making strained family relationships even worse. So I am very much worried about putting further strain on the family relationship as it exists.
However, the fact of the matter is that the respondent was put to considerable cost. It is a shame that there could not have been better communication earlier so that the matter could have been resolved.
I think that an order for costs is appropriate but not in the amount sought.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Lisa Molloy

Date: 17 December 2007