The Age (Melbourne)
3 February 2012
By Farah Farouque
Grandparents who resorted to litigation to see their beloved grandchildren after their son and his wife cut off all relations have lost a court fight to regain contact.
In what a federal magistrate said was an ''unusual'' and ''tragic'' case, the grandparents sought court orders to re-establish contact with the two boys, aged 10 and six.
Failing agreement with the parents about seeing the children, the grandparents wanted court orders that included the grandchildren being able to contact them, as well as times set for meeting at Christmas and birthdays.
The relationship between the adults began to slide when the grandmother made a catty comment at the hairdresser's about her daughter-in-law.
The comment got back, sparking tensions that drew in other members of the extended family.
When the case began, the parents appeared amenable to allowing the grandparents some supervised contact, but they hardened during the bitter 18-month court battle.
The father, who had made efforts to balance competing relationships was caught between ''a rock and a hard place'' as his wife threatened to break up the nuclear family over the issue.
Federal Magistrate John Coker, in a decision dated January 13, published this week saidThe father would have been ''enormously hurt'' when the grandfather once put up a sign on his fence saying that his son ''is not welcome here''.
The parties' relationship, unfortunately, continued to deteriorate which meant that for a significant period now there has been no time whatsoever spent by the children with the grandparents
Backing the parents, he ruled that ''rightly or wrongly'' they had made a decision about what they considered appropriate for their family unit.
Mr Coker saidI have no doubt as to the love that both of the paternal grandparents have for these two little boys, however, that is not to say that there could not have been better arrangements put in place and less conflictual stances taken.
Importantly, he noted there has been ''no suggestion of the parents having made inappropriate lifestyle choices in the past'' or been inadequate.
The grandparents took court action under the Family Law Act, which says children have a right to regularly spend time with both parents as well as people significant to their care, welfare and development, such as grandparents.
Professor Patrick Parkinson, a family law expert saidApplications by estranged grandparents for contact turned on the facts of each case, but such disputes were better resolved by mediation rather than litigation
Kuppy Nambiar, from Mathews Family Law saidGrandparent contact was a difficult legal issue because of the complexity of family relationships.
'We have a lot of inquiries by grandparents, but not a lot of them go to court because of the expense and difficulty
Wayne Butler, The Secretary of the Shared Parenting Council of Australia saidThe Act is quite clear in 60B (2)(b) children have a right to spend time on a regular basis with, and 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);it is therefore rather surprising that where grandparents have jumped through all the hoops, and should have already concluded mediation as a prerequisite to get to a hearing (There was no mention of mediation in the judgement and Professor Parkinson's support for mediation is a critical first step).. , but not even a morsel of contact or any form of alternative arrangement to stay in touch such as cards and letters has been effected here.
The other very concerning fact in this case is the extraordinary amount of time to determine, what should have been a simple matter of Grandparent contact.
One of the problems with the Act, apart from the sheer volume and vast complexity, is that the average person in the street reads sections like 60B (2)(b) and thinks that it means what it says, but in fact nothing is certain when you get into court regardless of what the Act actually says. The complexity is compounded by a common law system that creates precedent that must be considered.
The accompanying Explanatory Memorandum, written in great detail by the drafters and Attorney General's office attempts to shed light on the intention of what each amending section means. I have some doubt as to whether a number of participants in the Family Law system have actually read the notes and accompanying explanatory memorandum or the key second reading speeches that shed clarity and qualify what the Parliament meant.
Item 5 Subsection 4(1)
28. Item 5 inserts a new definition of relative into the general definitions in subsection 4(1), which now sets out the definitions for Part VII of the Act. It is a broad definition of relative, which includes step-parents, siblings, half-siblings, grandparents, uncles, aunts, nephews, nieces and cousins. This definition is relevant for new subsections 63C(2A), 64B(2), paragraphs 60CC(3)(b) and 60CC(3)(f) and subparagraph 60CC(3)(d)(ii). Item 5 implements recommendation 44 of the LACA Committee which recommended using the term step-parent rather than step-father
or step-mother in the definition of relative. This broad definition is intended to ensure the court takes account of other significant relationships that may be of benefit to a child in making childrens orders.
38. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a childs life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.
At note 168 refer to Item 22 which gives greater recognition to the important role that grandparents and other relatives play in a childs life and to the benefits to a child of continued contact with these significant people. In particular, subsection 64B(2) specifically provides that a parenting order may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to facilitate greater involvement of extended family members in the lives of children.
Grandparents were for the first time specifically covered in the 2006 amendments to ensure they did not loose all contacts and relationship with the grandchildren. The successful applications are few and far between and it seems on the surface at least, this decision is hardly in the spirit in which the Parliament intended.
His honour saidFrom the perspective of both the parents and the grandparents, the provisions of section 60CA are also relevant. Both say that the best interests of the children is the paramount consideration but, of course, both then say that what they propose in respect of a relationship or orders to be made with regard to the children spending time with the grandparents, is the most appropriate course to follow, in relation to the determination of this matter.
There is a considerable amount of case law on the subject but, unfortunately, as is often the case, there appears to be divergent views held by various judicial officers in relation to the various considerations that must be looked at, pursuant to section 60CC, including particularly the primary and additional considerations, as well as, of course, the objects and principles set out in section 60B(1) and (2).
I have had the assistance of strong submissions made by counsel for both parties in relation to this matter. I note, in particular, the comments of the judges of the Full Court of the Family Court, Justices Ellis, Lindenmayer and Bell in, Rice & Miller (1993) 16 FLR 970. In that case, their Honours were called upon to consider an issue as to whether there should be some priority given to a natural parent of a child, as opposed to an intervener in relation to the parenting of that child.
It may be that the absence of an order does, as noted by Moore J, run the risk that no relationship will come about but it is, in my assessment the least detrimental option in relation to these children and their future as part of the family unit comprised of the mother, the father, [X] and [Y].
Extensive references to other cases and sections of the Act were referenced
Family Law Act 1975, ss.4, 43(1)(a)-(d), 60B, 60B(1)-(3), 60CA, 60CC, 61B, 61DA, 65C, 65D, 65DAA
Rice & Miller (1993) 16 Fam LR 970
Cole & Collier and Collier  FMCAfam 1112
Potts & Bims and Ors  FamCA 394
Donnell v Dovey (2010) 42 Fam LR 559
Ni & Zang  FamCA 1100
Russell & Russell & Anor  FamCA 28
In the Marriage of Drew; Lovett (Interveners) (1993) 16 Fam LR 536;  FLC 92-360
Allen v Allen; Hargreaves (Intervener) (1984) 9 Fam LR 440;  FLC 91-531
Pearn and Appleby  FLC 90-231, Fam LR 447; FLC 79,300
Logie v The Department of Community Services of Victoria (unreported, 29 August 1991)
Re K (a minor)  3 All ER 795
Re K D (a minor) (ward: termination of access)  1 All ER 577
Re O'Hara (1900) 2 Irish Reports 232
Braithwaite and Braithwaite and Stocks (unreported, 19 December 1991)
F v Wirral Metropolitan Borough Council  2 WLR 1132
Smith and Swain  FLC 90 -400
Overton v Martinez (1978) 3 Fam LN 79;  FLC 90-406
In the Marriage of E (No. 2) (1979) 5 Fam LR 244;  FLC 90-645
S v M (1980) 6 Fam LN 10
McGuire v Tull (1981) 7 Fam LR 195 and 326
Jarman v LLoyd (1982) 8 Fam LR 878
Beck v Phillips (1981) 6 Fam LR 837
C v T (1985) 10 Fam LR 458
Marriage of Robertson (1977) 2 Fam LR 11,699
Marriage of Steadman (1977) 3 Fam LN 68
Byrne v George (1980) 6 Fam LR 902
Werth v Rowe (1981) 7 Fam LN 16
Matthews v Chapman (1981) 7 Fam LR 982
C v Director General of Department of Youth (1982) 7 Fam LR 816
Stollery v Clarke (1978) 4 Fam LR 573
J v J (1982) 8 Fam LR 551
In the Marriage of E (1978) 4 Fam LR 1
Dodd and Dodd v Stuart (1976) 1 Fam LR 11,540
Nolan v Gardiner (1983) 3 Fam LN 1
C v Q (1981) 7 Fam LN 1
Sullivan v Read-Bloomfield (1983) 9 Fam LR 187
Stambe v Inzitari (1977) 2 Fam LR 11,607
Storie v Storie (1949) 80 CLR 597 at 603
Powell v Anderson (1977) 1 Fam LN 38;  FLC 90-235
Overton v Martinez (1978) 3 Fam LN 79;  FLC 90 406
Gronow v Gronow (1979) 144 CLR 513; 5 Fam LR 719;  FLC 90-716
Lovell v Lovell (1950) 81 CLR 513
Kades v Kades (1961) ALJR 251
In the Marriage of Jurss (1976) 1 Fam LR 11,203;  FLC 90-041
In the Marriage of Raby (1976) 2 Fam LR 11,348;  FLC 90 -104
In the Marriage of Hobbs (1976) 2 Fam LR 11,380;  FLC 90 -119
In the Marriage of Mulligan (1976) 1 Fam LR 11,599;  FLC 90 -080
Dennet and Norman  FamCA 57
Connor & Bourke & Anor  FMCAfam 69
Davis v Davis & Anor (2007) 38 Fam LR 671
Kay& Jasper and Green  FamCA 1646
West and Anor and West  FamCA 546
Re Evelyn (1998) FLC 92-807
D & F  Fam CA 382
B v B: Family Law Reform Act (1997) FLC 92-755
Aldridge v Keaton (2009) 42 Fam LR 369