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Children – incident of parental responsibility…

error in treating parents’ joint opposition to grandmother spending time with their children

In Bonner & Chandler [2021] FedCFamC1A 81 (8 December 2021), Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal from a decision of the Magistrates Court of Western Australia, which dismissed a maternal grandmother’s interim application for time with her grandchildren.

The parents (whose marriage was intact) jointly sought the dismissal of the grandmother’s application.

The court at first instance made findings that “the respondents have made a parental decision … [s]uch decision falls under the umbrella of parental responsibility”; that “[where] the parents [are] in an intact family making a parental decision which they have the authority … to make … this court should be cautious in peering over the shoulder of functional parents …” ([20]).

Austin J said (from [23]):

“The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare (…)

[25] … [T]he magistrate’s reasons reveal the appellant’s application was dismissed essentially because the respondents jointly opposed the children spending any time with the appellant. The magistrate considered the respondents were entitled to make that decision as an incident of their parental responsibility for the children and strongly implied the legitimacy of their decision need not be scrutinised, much less countermanded. (…) The appellant … had standing under the (Family Law) Act to bring the proceedings … and so her application ought have been considered on merit; not dismissed just because the respondents opposed it. (…)

[27] It seems apparent from the evidence … that other factors affecting the children’s best interests were pertinent and ought to have been considered. (…)

[28] It could be that, even if the Act is applied correctly, the same result would ensue, but it cannot be said with certainty that the magistrate’s error of law had no influence upon the result. Accordingly, the error cannot be disregarded …”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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