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 388

Division: 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…

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.

Continue reading Wyard & Wyard

Details

AGLC: Wyard & Wyard [2022] FedCFamC2F 1157
Case: [2022] FedCFamC2F 1157
Decision Date

CaseChat Overview and Summary

This case involves the application by the paternal grandmother, Ms Wyard, for interim parenting orders to spend time with her grandchildren, X and Y, against the wishes of the children's parents, Ms B Wyard and Mr Wyard. The parents are in an intact relationship and have been caring for the children together. The court was required to decide whether the paternal grandmother's application for time with the children should be granted, and if so, under what conditions. The court had to consider the relevant statutory provisions and principles, including the paramount consideration of the children's best interests and the objects and principles set out in section 60B and 60CC of the Family Law Act 1975 (Cth). The court also had to consider the evidence and submissions from both parties, as well as the observations of the children and the applicant at the contact centre.

The court found that the paternal grandmother's application for time with the children should be dismissed and that the current interim orders for supervised time should be discharged. The court held that there were no presumptions or preferential positions that apply as between parent and non-parent, and that 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. The court found that the paternal grandmother had disregarded the parents' wishes and lacked insight into her actions and their effect on the respondents. The court also found that continuing litigation between the parents and the applicant grandmother was likely to have a negative impact on the parents and the children, and that it was not in the children's best interests to make the orders as sought by the applicant.

In light of these findings, the court dismissed the applicant's application for time with the children and discharged the current interim orders for supervised time. The court also ordered that the matter be listed for mention before another judge at a later date, and that the parties file and serve any evidence and submissions in support of their respective costs applications by specified dates. The court reserved judgment in respect of costs to be dealt with on the papers and delivered on a date to be advised.

Orders