Weist and Weist and Ors - [2019] FCCA 3189

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEIST & WEIST & ORS

[2019] FCCA 3189

Catchwords:
FAMILY LAW – Rights of grandparents – grandmother seeking access to her grandchildren – mother and fathers of the children refuse – whether the grandmother has an arguable case.

Legislation:

Family Law Act 1975 (Cth), s.11F

Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Church & Overton [2008] FamCA 965

Penn & Haughton [2013] FCCA 1941

Applicant:

MS WEIST

First Respondent:

MS A WEIST

Second Respondent:

MR JERRY

Third Respondent:

MR BYRNE

File Number:

DGC 2568 of 2019

Judgment of:

Judge McNab

Hearing date:

21 October 2019

Date of Last Submission:

21 October 2019

Delivered at:

Dandenong

Delivered on:

21 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr McConvill

Solicitors for the Applicant:

James McConvill Lawyers & Associates

Counsel for the First Respondent:

Ms Tiernan of Counsel

Solicitors for the First Respondent:

Emera Smith Family Law

The Second Respondent appearing in person

The Third Respondent appearing in person

ORDERS

The Applicant have leave to file an amended application within 14 days without the need on the part of the Respondents to file an amended Response.
Pursuant to section 11F of the Family Law Act 1975, the Applicant, First Respondent (if the Second and Third Respondents are not unavailable due to work commitments) and child V born … 2006 (“the child”) attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference in respect of V born … 2006, W born … 2008, X born … 2010, Y born … 2012 and Z born … 2017 (“the children”) on 3 December 2019 and:
(a)the respondents and child to attend at 9.00am; and
(b)the applicant to attend at 10.00am,
at Level 1, 53-55 Robinson Street, Dandenong.
Pursuant to Order 2 above the Family Consultant shall provide an oral report on 3 December 2019 at 2.15pm to the Court and to the parties.
The matter be adjourned to the Duty List of Federal Circuit Court of Australia at Dandenong on 3 December 2019 at 10.00am for Oral Report/Directions.
The parties’ costs be reserved.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
Further information about the legislation and the Scheme can be…

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: [2019] FCCA 3189
Decision Date: 21 October 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge McNab considered an application by a grandmother seeking access to her grandchildren. The mother and father of the children opposed the grandmother's access. The central dispute revolved around whether the grandmother had an arguable case to pursue access rights.

The court was required to determine if the grandmother's application for access to her grandchildren met the threshold for an arguable case, thereby permitting the matter to proceed. This involved assessing the merits of her claim in light of the parents' refusal to grant access.

Judge McNab ordered that the applicant grandmother be granted leave to file an amended application. The court also directed that the grandmother, the first respondent (father, subject to availability), and one of the children attend a Child Inclusive Conference with a Family Consultant. This conference was to address the access arrangements for all five grandchildren. Following the conference, the Family Consultant was to provide an oral report to the court and parties, after which the matter was adjourned for further directions. The parties' costs were reserved, and the court noted specific provisions regarding family violence allegations and cross-examination rights under the Family Law Act 1975.

Orders

Orders of the court

The Applicant have leave to file an amended application within 14 days without the need on the part of the Respondents to file an amended Response.

Pursuant to section 11F of the Family Law Act 1975, the Applicant, First Respondent (if the Second and Third Respondents are not unavailable due to work commitments) and child V born … 2006 (“the child”) attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference in respect of V born … 2006, W born … 2008, X born … 2010, Y born … 2012 and Z born … 2017 (“the children”) on 3 December 2019 and:

(a) the respondents and child to attend at 9.00am; and

(b) the applicant to attend at 10.00am,

at Level 1, 53-55 Robinson Street, Dandenong.

Pursuant to Order 2 above the Family Consultant shall provide an oral report on 3 December 2019 at 2.15pm to the Court and to the parties.

The matter be adjourned to the Duty List of Federal Circuit Court of Australia at Dandenong on 3 December 2019 at 10.00am for Oral Report/Directions.

The parties’ costs be reserved.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

10.

If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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