Bemert and Swallow

[2008] FamCA 714

FAMILY COURT OF AUSTRALIA

BEMERT & SWALLOW [2008] FamCA 714

FAMILY LAW – CHILDREN - interim

APPLICANTS: Mr Bemert,
Mr and Mrs Bemert (Snr)

RESPONDENTS: Mr and Mrs Swallow

FILE NUMBER: SYC 959 of 2008

DATE DELIVERED: 7 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Self represented

SOLICITOR FOR THE RESPONDENTS: Barkus Edwards & Doolan

Orders

1. The applications for Orders 8 and 14 as sought in the Application in a Case filed by the maternal great grandparents on 11 July 2008 are dismissed by consent.

2. The applications for the remaining orders sought in the Application in a Case filed by the maternal great grandparents on 11 July 2008 be dismissed.

3. The application filed by the maternal great grandparents on 1 July 2008 be heard at the same time as the application of the maternal grandfather filed 20 February 2008 and consequently the application filed on 1 July 2008 be adjourned to 28 October 2008.

4. Any further affidavit material that the respondent parents wish to file be filed and served within 28 days.

5. Within a further 14 days the maternal great grandparents file and serve any affidavits in reply and any written submission upon which they seek to rely.

6. Leave be granted to the respondent parents to file any amended application for final orders within 7 days.

IT IS NOTED that publication of this judgment under the pseudonym Bemert & Swallow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 959 of 2008

MR BEMERT AND MR AND MRS BEMERT (SNR)

Applicants

And

MR AND MRS SWALLOW

Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. This matter today is about an application by Mr and Mrs Bemert (Snr) for orders in an Application for Final Orders in respect their four great-grandchildren to spend time with them.  Their great-grandchildren are L, who is nearly 11, E , who is 8, M, who is 4, and T, who is 22 months. 

2. There is a preliminary question that I am being asked to decide, namely, whether or not their application is dealt with at a different time from or at the same time as an application that is also before me that was made by their son Mr Bemert. 

3. On 20 February 2008 the maternal grandfather Mr Bemert, who is the son of Mr and Mrs Bemert (Snr), filed an initiating application seeking final orders which amongst other things included an application for the following orders: 

   3.1.An order that the maternal grandfather be given access to the four children, and,

   3.2.An order that during the time that the four children spend with their maternal grandfather they also have time with other people who include the maternal great-grandparents. 

4. The maternal grandfather made it clear to me on 28 June 2008 that he wished to pursue an application on behalf of his parents seeking that the four children spend time with his parents, the maternal great-grandparents.   

5. The application that the maternal grandfather makes on behalf of his parents is opposed and his standing to make that application is also opposed and will be a matter for discussion and determination on that day, 28 October.

6. When the matter was before me on the last occasion the maternal grandmother sought my advice as to whether or not it would be preferable for his parents to fill out their own application forms and file them as initiating process, and on the next working day, which was a Monday, that is what happened. 

7. On the last occasion also the maternal grandfather wanted to tender a report and affidavit by a doctor in relation to his parents' health.  That did not happen on that day, but I infer that the report by Dr R dated 23 June 2008 and his affidavit sworn on 24 June 2008 that has now been filed, was that document.

8. Today the great-grandparents appear on their own behalf.  They had filed an application that their son the maternal grandfather represent them as their "personal legal representative".  That application was not pursued and was dismissed with their consent.  They also sought an application that effectively was an application for me to disqualify myself.  That application was not pursued and was dismissed with their consent.

9. The remaining applications in the application in a case filed on 11 July 2008 in effect is an application that their case be dealt with differently and at a separate time from the application filed by their son, the maternal grandfather. 

10. The documents that they have provided me with today in support of their application are affidavits sworn by them each on 30 June 2008 and further affidavits sworn by them each on 8 July 2008.  They have also relied upon submissions in writing dated 8 July 2008 and have made submissions from the Bar table. 

11. The principal application that they make is for final orders as set out in the application filed on 1 July 2008, which are in the following terms:

    1.Regular contact with our four great grandchildren, [L], [E], [M] and [T] on a weekly basis for two hours on a Sunday at 3pm pursuant to s.60B2(b) of the Family Law Act 1975. (I note in passing that is the Objects section of Part VII and does not confer any power to make an order).

    2.That the parents or their agents bring the four grandchildren to our home for contact and collect them after contact.

    3.That order 1 and 2 be implemented expeditiously in view of the great grandfather’s age and health.

    4.We seek short notice (this was written in pen and was not sought as an interim order; in fact no interim orders were sought in the application).

12. Although the application that the maternal grandparents make is slightly different in its terms to the application that the maternal grandfather seeks to make on their behalf, they are very similar applications.  The thing that initially happened in this case was something that was pretty bland and pretty ordinary in my view.  That was that the two matters were put together.  They involve the same four children and they involve virtually the same application.

13. It has been put to me that because of the health of the great-grandfather I should in some way expedite their case and bring it forward so that it is heard at a time earlier than 28 October.  I have explained to the great-grandparents today that the listings of this Court mean that to find a time for me to hear the matter earlier than 28 October would be very difficult.  It would involve dislocating other cases that have already been set for hearing.  The question is whether or not the greath-grandfather’s health is such that it is imperative that I move other cases.  The evidence about the great-grandfather’s health is, firstly, his own evidence in his affidavit and the evidence of his wife.  They give lay opinion evidence which is generally that the great-grandfather is in poor general health. 

14. An example of that evidence is in the great-grandfather’s affidavit sworn on 8 July 2008 at paragraph 7.  The great-grandmother gives similar evidence in paragraph 15 of her affidavit of 30 June 2008.  The great-grandfather has told me from the Bar table this morning how he feels about himself in terms of his own health.  That was not given on his oath and therefore I have to give that a little less weight, but I heard what he said.

15. What I have, however, presented to me in their case is an affidavit by a qualified medical practitioner, Dr R.  Dr R is a psychiatrist and practises as such, but he is also a qualified medical practitioner.  The maternal great grandparents attended Dr R for him to make an assessment as to whether or not they were fit and proper people to be able to have time with their great‑grandchildren.  Dr R’s conclusion in his report dated 23 June 2008, which is annexed to his affidavit sworn on 24 June 2008, in the final paragraph is that:

    “Both [the great-grandparents] are in general good health for their age.”

16. The great-grandfather is 88 years of age and "general good health for his age" in my view, reasonably interpreted, means that in the doctor's view his health is such that it would not be anticipated that his death is immediately imminent.

17. The other matter that I take into account in relation to the issue of expedition is the history of this matter. 

18. The great-grandparents have not seen the three younger children except for a chance meeting between the great-grandmother and the four children and their mother at a restaurant I think sometime in March 2007.  Although there is some conflict on the face of their affidavit, it appears that they babysat L from her birth until sometime in 1998.  I think the great-grandmother in her affidavit says it was mid-1998 in one spot and January 1998 in another spot and the great-grandfather says it was early 1998.  But be that as it may, there has been no significant time spent by L with her great-grandparents since sometime in 1998.  So it has been about 10 years since there has been any communication of any nature apart from that one chance meeting involving the great-grandmother in 2007.

19. The only explanation I am given in relation to this application being brought at this time is that up until very recently the great-grandparents were not aware that they had an ability to make an application to this Court.  I agree with the solicitor’s for the respondents submission that the lack of any attempt to make contact for a decade, is a matter that I should take into account when considering whether or not I give this matter a priority over other matters that are already in my list and that have been set and have waited for some considerable time to be set for hearing before me or for attention by me.

20. There are some other issues raised by the solicitor for the respondents as well.  They related to the stress that might be caused to the parents by bifurcated hearings and the duplication in resources in a bifurcated hearing.

21. I am aware in material filed in the matter involving the maternal grandfather that an affidavit has been filed by the mother dated May 2008 and in that affidavit she gives evidence about how various things that she alleges that have happened between her and her father have greatly affected her, about the fact that she is traumatised by these proceedings and she is distressed at recalling past events.

22. I take into account the evidence that she has given.  It is untested.  I am not saying I accept any or all of it but I take into account at this preliminary stage the fact that there is the possibility that the mother may feel some trauma as a result of being involved in proceedings in this Court and I take into account that the bifurcation of proceedings would only tend to increase any distress that she currently feels.

23. For all of these reasons stated I do not think it is appropriate to split these hearings and I will make an order dismissing the applications that have been pressed before me today as set out on page 3 of the application in a case filed on 11 July 2008.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  25.8.2008