Reyman and Reyman & Ors

[2016] FamCAFC 178

FAMILY COURT OF AUSTRALIA

REYMAN & REYMAN AND ORS [2016] FamCAFC 178

FAMILY LAW – APPEAL – CHILDREN – Where the grandmother was discharged as a party – Where the grandmother would like time with the child separate to the mother’s time with the child – Where the other parties agreed the appeal should be allowed and the grandmother’s application for time with the child should be remitted for rehearing – Appeal allowed.

FAMILY LAW – COSTS – Where the grandmother paid the costs of the transcript – Where there was an absence of procedural fairness accorded to the grandmother – The grandmother should be awarded her costs pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth) s 65C(ba)
Federal Proceedings (Costs) Act 1981 (Cth)

APPLICANT: Mrs D Reyman

FIRST RESPONDENT: Ms E Reyman

SECOND RESPONDENT: Mr Tennett

INDEPENDENT CHILDREN’S LAWYER: Christopher Wright

FILE NUMBER: TVC 102 of 2010

APPEAL NUMBER: NA 51 of 2016

DATE DELIVERED: 2 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 2 September 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 June 2016

LOWER COURT MNC:

REPRESENTATION

FOR THE APPLICANT: Mrs D Reyman (in person)

FOR THE FIRST RESPONDENT: Ms E Reyman (in person)

SOLICITOR FOR THE SECOND RESPONDENT:	Connolly Suthers Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Murray Lyons Solicitors

Orders

1. By consent, Appeal NA51 of 2015 is allowed.

Further, it is Ordered:

1. Paragraph (2) of the Orders made by Judge Willis on 23 June 2016 be set aside.

2. The grandmother’s application be remitted for rehearing at a date to be assigned by Judge Baumann.

3. That the Court grants to the grandmother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of costs incurred by her in relation to the appeal.

Notation:

The Independent Children’s Lawyer will discuss with the grandmother consent orders as proposed by the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reyman & Reyman and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA51 of 2016
File Number: TVC102 of 2010

Mrs D Reyman

Applicant

And

Ms E Reyman

First Respondent

And

Mr Tennett

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. A Notice of Appeal was filed on 21 July 2016 by Mrs D Reyman who I will refer to as “the grandmother”.

2. In the course of an interim hearing, Judge Willis on 23 June 2016 discharged the grandmother as a party to the proceedings. It is from this order that the grandmother appeals. The order was made without the grandmother having an opportunity to be heard. No application was made by any party that the order should be made, it seems the order was made by the judge because she thought there was no utility to the grandmother’s application.

Background

1. The mother (who is the daughter of the grandmother) filed on 12 August 2014 an amended application seeking parenting orders in relation to a child, born in 2005.

2. A response was filed by the grandmother on 13 October 2014 asking for time with the child and regular contact by telephone.

3. An affidavit was filed by the grandmother on 4 November 2015 explaining that she would like to spend one day per fortnight with the child when he is not with his mother and also for telephone contact. The grandmother also expressed concern in relation to the child’s health, especially his feet. Further affidavits have subsequently been filed by the grandmother expressing other concerns.

4. The grandmother obtained the transcript of the proceedings on 23 June 2016. It is apparent that it was difficult for the judge to understand what each of the parties were seeking and that this has become an entrenched and difficult dispute. After some discussion but without warning, the judge said:

   HER HONOUR:       Now, what I intend to do – as I said, the mother is living in [North Queensland]. So is her grandma. There is no need for [the grandmother] to be a party in this matter and I intend to discharge her as a party. You are more than welcome to support your daughter, Madam. You don’t need to be a litigant.

   (Transcript, 23 June 2016, p.9, l.30-34)

5. At the directions hearing of this matter today, all parties (including the Independent Children’s Lawyer) agreed the appeal should be allowed and the orders affecting the grandmother set aside.

6. The grandmother’s application will be remitted for re-hearing. I understand that the matter is listed for directions in the Federal Circuit Court on 29 September 2016.

Costs

1. The appeal is to be allowed as clearly there was an absence of procedural fairness accorded to the grandmother. It was necessary for her to appeal to continue to be a party in the proceedings and to seek orders. Section 65C(ba) of the Family Law Act 1975 (Cth) specifically provides that grandparents of a child may seek parenting orders. Although the appeal was conceded it is appropriate that the appellant grandmother have her costs.

2. In the circumstances of this case the proper order is in relation to the Federal Proceedings (Costs) Act 1981 (Cth). I understand the grandmother’s costs are in the order of $1,500, as it was necessary for her to order and pay for the transcript.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 2 September 2016.

Associate: 

Date:  2 September