Wyard & Wyard
[2022] FedCFamC2F 1157
Federal Circuit and Family Court of Australia
(DIVISION 2)
Wyard & Wyard [2022] FedCFamC2F 1157
File number(s): DUC 409 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – Interim parenting – parents in intact relationship – application by paternal grandmother to spend time with children – no presumptions or preferential positions that apply as between parent and non-parent – paternal grandmother’s disregard of parents’ wishes – lack of insight – application to spend time dismissed – previous orders for supervised time discharged. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65C, 69ZL Cases cited: Beaton & Beaton [2020] FamCAFC 297
Birkett & Birkett and Anor [2017] FCCA 2503
Browne & Dunn (1893) 6 R 67
Church & Overton and Anor [2008] FamCA 952
Goode v Goode [2006] FamCA 1346
Jones v Dunkel [1959] HCA 8
Keats & Keats [2016] FamCAFC 156
Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153
Valentine & Lacerra and Anor [2013] FamCAFC 53
Zaya v Manidis Roberts Pty Ltd [2018] NSWSC 388Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 16 August 2022 Place: City D Appearing for the Applicant: Mr Hill Solicitor for the Applicant: Longman Hill Solicitors Counsel for the First and Second Respondent: Ms Bridger Solicitor for the First and Second Respondent: Arden Law ORDERS
DUC 409 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WYARD
Applicant
AND: MS B WYARD
First Respondent
MR WYARD
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant paternal grandmother is granted leave to rely on the Minute of Order contained in the Case Outline document filed 15 August 2022.
2.The respondent parents are granted leave to rely on the Minute of Order contained in the Case Outline document filed 12 August 2022.
3.The parties are granted leave to inspect all material produced under subpoena by B Family Centre, Town C.
4.Judgment is reserved to be delivered at 3pm today.
THE COURT FURTHER ORDERS THAT:
5.Orders 3, 4 and 5 made on 21 February 2022 are discharged.
6.The paternal grandmother’s application for interim parenting orders is dismissed.
7.The matter is listed for mention before Judge Dunkley at 9:30am on 16 November 2022 at City D. The parties are excused from personal attendance, if legally represented.
8.In respect of the respondent parent’s oral application for indemnity costs, the respondent parents are to file and serve any evidence in support of the costs application together with any written submissions (limited to 5 pages) by 4pm on 2 September 2022.
9.In respect of the respondent parent’s oral application for indemnity costs, the applicant paternal grandmother is to file and serve any evidence which she relies upon together with any written submissions by 4pm on 30 September 2022.
10.If either party fails to comply with the directions for filing made today, any material that is filed other than in accordance with these orders will not be taken into consideration and will be disregarded by the Court.
11.Judgment in respect of costs is reserved to be dealt with on the papers and delivered on a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Wyard & Wyard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Orally; Revised from Transcript)JUDGE OBRADOVIC:
These are short form reasons delivered orally at the conclusion of the interim hearing in this matter pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings concern two children, five-year-old X and three-year-old Y.
The applicant is the children's paternal grandmother and the parents are the respondents. The parents are in an intact relationship, living together as a family and caring for their children. The applicant brings this application consequent upon a fractured relationship between her and the respondents which has resulted in her not seeing her grandchildren for a period of approximately two years, except as has recently occurred by virtue of the interim orders made in February this year.
There is no expert evidence before the Court in relation to the children's relationship with any of the parties who are the subject of these proceedings. Exhibit 1 contains some notes from B Family Centre at Town C in respect of the observations of the children and the applicant, following the order for the children to spend supervised time with applicant made in February this year.
The parents are opposed to the paternal grandmother spending any time with the children as their primary position, but if an order is made compelling such time, then they press for orders in the alternative: that time be at a public place and in their presence. The Court also understands that the parents propose that the current interim orders for supervised time be discharged.
The paternal grandmother moves the Court for orders, for time with the children in accordance with the minute of order forming part of her case outline document.
The Law
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.
The Court is to determine the issue of risk by weighing the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).
Best interests remain the paramount consideration (Beaton & Beaton [2020] FamCAFC 297 at [35]).
There are objects set out in section 60B that help to clarify what Part VII of the Act aims to achieve when it talks about best interests (section 60B(1)). There are also principles that underlie those statutory objects set out in section 60B(2) which have been referred to by the applicant's solicitor.
The paternal grandmother is entitled to bring these proceedings as a person interested in the children's care, welfare and development (section 65C).
The concept of best interest is explained in section 60CC. The primary considerations are set out in section 60CC(2) and include the benefit to the child of having a meaningful relationship with both parents and protecting the child from harm arising from abuse, neglect or family violence.
There are additional considerations set out in section 60CC(3). Grandparents are referred to specifically as people who can be significant to children's welfare. The law, however, does not place grandparents in any special position above parents and the submission made by the solicitor for the applicant that simply by virtue of being a grandparent, that the children have a right to spend time with that grandparent is rejected as being a correct statement of the law.
Benjamin J discussed in Church & Overton and Anor [2008] FamCA 952 (“Church”) some of the relevant provisions in relation to grandparents not being in any special position above parents. His Honour said as follows:
The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative
His Honour went on to say that:
The law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child.
It is this later statement that has been, as the Court understands it, the subject of some criticism by the Full Court of the Family Court in later decisions.
In Valentine & Lacerra and Anor [2013] FamCAFC 53, the Full Court of the Family Court said commenting on Church:
[42] In that case, Benjamin J was faced with an argument by the applicant grandfather that a grandparent has a “special position” under the legislation which entitles him or her to spend time and communicate with grandchildren. That is clearly not correct, but it seems that in dispelling that notion his Honour went too far the other way and in effect accepted the submission of the parents that it was their role to determine with whom their children should have a relationship, and that should shape whatever order is made. His Honour’s comments that tend to suggest that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority.
[43]… there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
DETERMINATION
The applicant relies on an affidavit filed on 7 December 2021 and the respondents on an affidavit of the mother filed on 4 March 2022. Neither party has taken the opportunity of filing affidavits in accordance with Court orders made on 4 May 2022 when the matter was set down for interim hearing on today's date. As noted earlier, Exhibit 1 contains notes from the contact centre where the children have been spending time with the applicant pursuant to orders made in February 2022.
There are a few agreed or uncontested facts between the parties and they are as follows:
a.As already noted in these Reasons, the parents are in an intact relationship, living together with the children in Town E. The mother works part-time and the father full-time. The parents share the responsibility of caring for the two children.
b.The applicant lives on a working farm in Town F. She has backpackers and workers at her residence for most of the year.
c.At the time of the filing of the application, the parents and the children were not in contact with the applicant, that being the parents' preference at that time.
d.Pursuant to orders made in February 2022, the children have spent time with the applicant on four occasions, such time as being supervised by B Family Centre, Town C.
e.The parents are opposed to the children spending time with the applicant paternal grandmother.
Those are the few uncontested or agreed facts.
It does not appear that the children have ever spent any time alone with the applicant, that is, without at least one of their parents being present or the children being in the presence of a trained supervisor. It is unclear on the evidence whether the children have ever been in the applicant's home, certainly it appears that X might have been there when she was a toddler with her parents being present, but not Y.
After X was born, there was very limited time between the applicant and X. The applicant refers to these “visits” as being “unusual” in the sense that the respondent mother required the applicant to schedule a 30-minute visit and a particular time. Once the time was up, the applicant was asked to leave. The applicant is critical of the time between her and X occurring in this fashion and being curtailed by the respondent mother in this fashion.
When X was approximately three months old, despite the parents' express wish that the child not yet meet her paternal great-grandmother as she had not recently been vaccinated for whooping cough, the applicant decided that she would take her mother to see X. Her evidence is that she did not think that this was “a massive issue as X was going out in public”. When the applicant and her mother arrived at the parents' home, the applicant was told to leave, but the paternal great-grandmother was welcomed into the home and she spent time with the parents and the child.
The applicant refers to the parents' decision about when the child would be introduced to her great-grandmother as being “over the top” and she deposes that she did not agree with it. This much is clear, the applicant clearly disregarded the parents' wishes and did what she wanted. The applicant says that she will “have to respect the parental decisions” of the parents even when she does not agree, because they are the parents. That is the applicant's evidence to this Court. This, however, is said in the face of an application to spend time with the children where the applicant is fully aware of the parents' resistance to her application and their wishes for her not to spend any time with the children for reasons which are outlined in the respondent mother's affidavit.
When X was about 20 months old, the parents and the child went to Country G to visit the maternal family. Prior to the start of that trip, the applicant attended the parents' home. She says that she “felt unwelcomed and that the environment was uncomfortable”. The respondent mother asked the applicant to leave, as on the respondent mother's evidence, she had quite a bit to do before going overseas. The applicant on her own evidence refused to leave when asked to do so by the mother. The police were called and attended. The applicant eventually agreed to go home.
Whilst the parents and X were in Country G, the applicant entered their home without, it seems, seeking their permission or telling them that she would do so. The respondents became aware of this after they returned home and they were upset with the applicant for doing so. It seems that the applicant considered that she had a right to enter the parents' home as it was a house that was leased to them by her mother. The applicant says that her mother had asked her to “check on the house” and that she had a right to “store some of her personal things in one of the bedrooms” and that “she (the paternal great-grandmother) and I (the applicant) had access to them.
There is no suggestion by the applicant that there was a particular reason as to why she needed to check on the house by going inside the house at that particular time or that she needed to access her mother's personal items during the period of time that the respondents were away. The applicant says in her affidavit to the Court that she now understands why the parents were upset but, again, at the time of her entering the home “she didn’t think that it was a big deal”. In circumstances where the applicant deposes that she has always had a difficult relationship with the respondent mother, it is difficult to understand why the applicant would not think that entering the parents' home without, it appears, their express permission might be, to use the applicant's words, “a big deal”.
The parents have time and time again expressed their wishes not to have the applicant take photographs of the children, nor to post them on social media. This is deposed to in the respondent mother's affidavit, notwithstanding the applicant's submission that there was no evidence about that matter. The applicant has continued to take photographs of the children including most recently at the contact centre, once again, in the face of the parents' express wish for her not to do so. The applicant seems to be critical of the parents in this regard and through her solicitor refers to these matters as “petty”. This in itself speaks of the low level of respect the applicant holds for the parents' capacity to make appropriate decisions for their children.
In all of the circumstances, it is difficult to accept what the applicant says about respecting the parents' parental decisions.
The applicant first met Y at least one month after he was born, indeed she says that she did not even know he was born until a month afterward. Her evidence is silent as to whether she knew that Y was, indeed, expected at all.
When Y was about 10 months old, time between the applicant and the children ceased. The respondent mother says that this was around the time when COVID-19 issues started to arise circa Easter 2020.
The respondent mother deposes that on this last occasion the applicant spend time with Y, that the applicant gave the child a toy which had a plastic clip on it. The respondent mother says that the child was being held by the applicant and that whilst being so held, he was sucking on the teddy bear and then started to choke on the plastic clip. The applicant, according to the respondent, did not notice what was happening. The applicant's evidence in this regard is entirely silent.
There is very limited evidence of the children's relationship with the applicant. Exhibit 1 speaks to the children being playful and content when spending time with the applicant at the contact centre. This is understood in the context of these children also not in any way appearing distressed when left by their parents at the contact centre on their very first occasion, and interacting in a comfortable way with the contact centre workers. It is inferred from the children's behaviour at the contact centre even prior to their introduction to the applicant that the children are well-adjusted and happy children who do not have any or who do not appear to have any separation anxiety from their parents. This must fall squarely at the feet of the parents who have been responsible for bringing them up and rearing them.
While the Court acknowledges that the authorities state that parents are not in a preferential position per se, this is not a blanket denial of parents' rights to parent their children in the manner they consider appropriate. The Court is not here as a moral compass for the parties, its role is not to tell parents and others how to parent children or, indeed, how to behave. It is to make parenting orders in certain circumstances when the Court's jurisdiction is enlivened with the children's best interest being of paramount consideration.
Most of the section 60CC factors are not relevant to the determination of the dispute between the parties. They are not so relevant because the majority of those factors concern parents and parents only.
The children are only five and three. The conflict between the parents and the applicant precedes the oldest child’s birth and, indeed, it does not appear to have abated after the children's births.
The Court appreciates that the parents have to date consented for time occurring between the children and the applicant, such time being supervised. This should not be taken as an admission against interests or, indeed, some form of estoppel against the parents running their case now for the application to be dismissed and for there to be no order for time between the applicant and the children.
It seems on all of the evidence before me and including the submissions that have been made on behalf of both parties, that the applicant does not have a great deal of insight into her actions or the effect that they are having on the respondents despite the proclamation that she is respectful of the respondents' position.
The parents have incurred significant costs as is evident from the costs notice filed. The costs which the respondents have to date incurred are indicative of how strongly they feel in regards to the applicant's attempts to spend time with their children.
The majority judgment of Ryan and Austin JJ in Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 (at [24]) seems to allow or to accept that distress to a parent and/or to the children arising from the litigation then pursued by the grandparents is a relevant consideration (Birkett & Birkett and Anor [2017] FCCA 2503 at [69] (“Birkett”)). On the evidence before the Court, there is already a high degree of conflict between the parent and the applicant. This litigation is not going to assist with that conflict.
The children have a relationship with the paternal grandfather and it seems other members of the paternal family. The maternal extended family is overseas. The parents, it appears, may wish to move overseas or to another state in the future, and they do not want their freedom of movement to be curtailed by the applicant.
The mother's evidence about the parents' position in part is as follows:
[Mr Wyard] and I are not confident that the applicant will look after our children and respect our decisions as parents. The applicant has questioned our parenting decisions in the past and we do not consider she will follow them. We do not feel our children are safe with the applicant on her property. Based on the applicant’s past behaviours towards [Mr Wyard], particularly when she is intoxicated or angry, [Mr Wyard] and I do not want to risk our children being exposed to the same abuse and violence.
It is well established that the rule in Browne & Dunn (1893) 6 R 67 does not apply where a witness is on notice that the witness's version of events is in contest. In the present case, the applicant is on notice as to the evidence in the respondents' case.
As noted earlier, despite orders for the filing of evidence by 29 July 2022, the applicant has chosen not to file any further evidence. This is in light of the respondent mother's affidavit and the issues it raises. The applicant's evidence is completely silent in relation to the risks which are raised by the respondent mother and as to the applicant's own behaviours towards the respondent father when he was a child, or for example the incident when Y started choking on the plastic clip during the last visit that the applicant had with the child in early 2020.
Unchallenged evidence should, prima facie, be accepted by a tribunal of fact, which is difficult in circumstances curtailed by the absence of cross-examination. The Court is not prepared to make any findings in this regard, including by reference to the applicant's silence on these issues, namely in accordance with the principles discussed in Zaya v Manidis Roberts Pty Ltd [2018] NSWSC 388 (“Zaya”), being a decision of the Supreme Court of New South Wales, the statements of law not being criticised on appeal of that decision. In Zaya, the Supreme Court had regard to long-standing civil authority that “silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge against him than he would not” (at [24]-[28]).
However, the Court is prepared to draw a Jones v Dunkel [1959] HCA 8 inference in respect of the lack of evidence in the applicant's case, in particular about the issues of risk, that is, an inference that any evidence in that regard would not have assisted the applicant's case.
The applicant is the party moving the Court for orders. She has been on notice since March 2022 as to the evidence in the respondents' case. The onus is on the applicant to prove her case. It is not enough to simply say there is no “detriment” on the evidence or that the respondents have not proven that there is any detriment. The applicant needs to prove her case on balance. She needs to prove that the orders she presses for are in the children's best interests and that in the exercise of the Court's discretion such orders should be made.
As has been noted by Judge Neville in Birkett (at [71]):
…The vinegar of litigation can only sour further the intractably bitter dispute between the adults. It will be impossible to quarantine the children from such festering and caustic resentment and animosity. Unsurprisingly, such a view has been long-held. For example, in Mazur, after noting that the only disruptive aspect of the child’s life in that matter was “the anxiety of these proceedings and what has led up to them”, Woods J (In the marriage of Mazur (1976) 2 FamLR 11, 311) went on to say: “the disadvantages of a coercive situation would totally outweigh the prospect of any advantage such contact may offer.”
While the Court appreciates that there is no express evidence as to the impact these proceedings might have on the children, that does not mean that the Court cannot draw an inference or that it is not open to the Court to draw an inference that continuing litigation between the parents and the applicant grandmother is likely to have a negative impact, not only on the parents, but also on the children.
The Court is not persuaded that it is in the children's best interests to make the orders as sought by the applicant. The Court is persuaded that the applicant's application for time with the children ought to be dismissed and furthermore, that the current interim orders for supervised time be discharged.
The applicant submits that the Court should not “close the door” on the children's relationship with the applicant. There are many other ways open to the parties and particularly to the applicant to approach the situation without resorting to litigation. She is the person who has chosen to commence proceedings and proceed down this path. To dismiss her application, as the Court is invited to do, is not to close the door. It is to act in the children's best interest.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
52 I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 7 September 2022
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