Bemert & Swallow
[2009] FamCA 5
•15 January 2009
FAMILY COURT OF AUSTRALIA
| BEMERT & SWALLOW | [2009] FamCA 5 |
| FAMILY LAW – CHILDREN – Summary dismissal – Permanent stay - Application by maternal grandparent and maternal great grandparents for parenting orders to spend time with grandchildren- Respondents seek summary dismissal or alternatively permanent stay – Applicant maternal grandfather found to be vexatious litigant in other courts – Whether application of the maternal grandfather is frivolous or vexatious– Applicant maternal grandfather not to institute proceedings under the Family Law Act without leave of a court exercising jurisdiction under the Act – Allegation of childhood abuse by maternal grandfather and his brother against the respondent mother- Applicant maternal grandfather seeks parenting orders that would negate conditions of AVO currently in place to the extent they are inconsistent – Consideration of standing of the maternal great grandparents to bring a parenting application under s65C(c) of the Family Law Act - Security for costs |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B(2) and (6), 64C, 65C(ba) and (c), 68P(1) and (2), 68Q(1), 117, 118(1) |
| Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481 Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 (10 December 2003) Church v S Overton & Anor [2008] FamCA 965 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Custodio v Pinto & Ors (2006) FLC 93-279 Darwin and Darwin [2008] FamCA 588 Faulkner, McPherson, Department of Community Services and Rugendyke (1995) FLC 92-630; 19 FamLR 507 Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Jacks & Samson [2008] FamCAFC 173 KAM v MJR and Anor (1999) FLC 92-847; 24 FamLR 656 L v T (1999) FLC 92-875; 25 Fam LR 590 Lederer & Anor and Hunt (2007) FLC 93-311 Luadaka v Luadaka (1998) FLC 92-830 Matthews & Santos & Director-General [2002] FamCA 401 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 R v M [2002] FMCAfam 279 Re J and M: Residence Application (2004) 32 Fam LR 668 Re Patrick: An application concerning contact (2002) FLC 93-096; 28 Fam LR 579 Rogers v The Queen (1994) 181 CLR 251 Sinclair-Small & Sinclair [2008] FamCA 1056 SPS and PLS (2008) FLC 93-363 Venkatesan & Pawar [2007] FMCAfam 1109 |
| APPLICANTS: | Mr Bemert; Mr and Mrs Bemert (Snr) |
| RESPONDENTS: | Mr and Mrs Swallow |
| FILE NUMBER: | SYC | 959 | of | 2008 |
| SYC | 3827 | i | 2008 |
| DATE DELIVERED: | 15 January 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 October 2008 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | Self represented |
| SOLICITOR FOR THE RESPONDENTS: | Barkus Edwards Doolan |
Orders
The application filed by Mr Bemert on 20 February 2008 (“the first application”) is summarily dismissed.
In the event that Order 1 is set aside by the Full Court, and the matter remitted for re-hearing, Mr Bemert shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for Mr and Mrs Swallow the sum of $50,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the first application.
Pursuant to s 118(1)(c) of the Family Law Act 1975, Mr Bemert shall not, without leave of a court having jurisdiction under the Family Law Act 1975, institute any proceedings under the Family Law Act 1975.
Mr and Mrs Swallow may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for Mr Bemert to pay their costs.
The initiating application filed 1 July 2008 by Mr and Mrs Bemert (Snr) (“the second application”) is summarily dismissed.
In the event that Order 5 is set aside by the Full Court, and the matter remitted for re-hearing, Mr and Mrs Bemert (Snr) shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for Mr and Mrs Swallow the sum of $25,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the second application.
Mr and Mrs Swallow may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for Mr and Mrs Bemert (Snr) to pay their costs.
IT IS NOTED that publication of this judgment under the pseudonym Bemert and Ors & Swallow and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBERS: SYC 959 of 2008 & SYC3827 of 2008
| MR BEMERT; MR AND MRS BEMERT (SNR) |
Applicants
And
| MR AND MRS SWALLOW |
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
Mr Bemert, (“the maternal grandfather”), wants to see his four grandchildren who do not know him. The children’s parents, Mrs Swallow (“the mother”), and Mr Swallow (“the father”), vehemently oppose the maternal grandfather’s wish. A State protective order currently keeps the maternal grandfather away from the children and their parents. The maternal grandfather wants this Court to set aside that order. The maternal grandfather is a veteran litigant whom the Supreme Court of New South Wales has found is vexatious. The mother says she was sexually abused by the maternal grandfather as a child. The maternal grandfather denies this saying his daughter has a mental illness. The maternal grandfather also wants the children to see his parents, Mr and Mrs Bemert (Snr) (“the maternal great grandparents”) and other relatives. The maternal great grandparents have made their own application to see their great grandchildren which the parents oppose. The central question to consider is whether there should be a full hearing or whether these proceedings should be dismissed now. Another question is whether the maternal grandfather should be able to commence future cases in this Court without first getting permission to do so.
The children are: L born in August 1997 (aged 11), E born in February 2000 (aged 8), M born in July 2004 (aged 4) and T born in October 2006 (aged 2) (“the children”).
The maternal grandfather proposes that the children spend time with him every second weekend on a Sunday for three hours, except on religious holidays and school holidays. He also seeks an order that during the time the children spend with him, other members of the maternal grandfather’s family, namely his brother, the children’s great uncle C, C’s wife and his son, his father and his mother, the maternal great grandparents, spend time with the children. This time with the children is to take place at N Street.
The protection order is an Apprehended Violence Order made by a Magistrate dated … October 2007 (“the AVO”), which is in force for a period of five years. The maternal grandfather had applied to the Supreme Court of New South Wales for leave to appeal against the AVO and leave to appeal was refused.
The maternal great grandparents seek to spend time with the children on a weekly basis for two hours on a Sunday at 3pm. The maternal grandfather and the maternal great grandparents all live at N Street.
Whilst it is somewhat unclear as to whether or not the maternal grandfather and the maternal great grandparents are seeking time which would be concurrent or cumulative, the maternal grandfather has applied for the removal of any restriction which would stop him from being at N Street at the times the children were with the maternal great grandparents.
The maternal grandfather and the maternal great grandparents spent some time with L before she was one year of age but the other three children have not spent time with them nor since early 1998 has there been any communication between any of the children and the maternal grandfather or the maternal great grandparents, apart from a very small number of chance meetings.
APPLICATION FOR SUMMARY DISMISSAL AND ALTERNATE ORDERS
The respondents to the Application for Final Orders, the children’s parents, on 20 August 2008 have filed a Further Amended Response to the applications of the maternal grandfather and the maternal great grandparents seeking orders in the following terms:-
1.That the application filed by [the maternal grandfather] is summarily dismissed.
2.In the alternative to order 1, that the application filed be permanently stayed.
3.In the alternative to orders 1 and 2, that the application be stayed pending [the maternal grandfather] obtaining an order from the Supreme Court of NSW for leave to initiate proceedings as to parenting in a court exercising jurisdiction pursuant to Part VII of the Family Law Act.
4.In the alternative to orders 1, 2 and 3, that pursuant to s 118 of the Family Law Act and or Part 10.3 and or Rule 11.04 of the Family Law Rules, the court summarily dismiss and or stay the application filed by [the maternal grandfather].
5.That as a further alternative and without concession, that [the maternal grandfather] pay by way of security for costs to the solicitors for the parents a sum of $50,000 within 7 days of the date of these orders and such solicitors hold monies pending determination at first instance of [the maternal grandfather’s] application filed on 20 February 2008 and that the application be stayed pending compliance with this order.
6.That the applicant [maternal grandfather] pay the respondents’ costs of and incidental to his application filed 20 February 2008 on an indemnity basis.
7.That the initiating application filed 1 July 2008 by [the maternal great grandparents] be summarily dismissed.
8.In the alternative to the preceding order, that the said initiating application filed by [the maternal great grandparents] be permanently stayed.
9.In the further alternative, that pursuant to s 118 of the Family Law Act and or Part 10.3 and or Rule 11.04 of the Family Law Rules, the Court summarily dismiss and or stay the application filed by [the maternal great grandparents].
10.That as a further alternative and without concession, that [the maternal great grandparents] pay by way of security for costs to the solicitors for the parents a sum of $25,000 within 7 days of the date of these orders and such solicitors hold monies pending determination at first instance of [the maternal great grandparents’] application filed on 1 July 2008 and that the application of [the maternal great grandparents] be stayed pending compliance with this order.
11.That [the maternal great grandparents] pay the respondents’ costs on an indemnity basis of and incidental to their initiating application filed 1 July 2008.
On 28 October 2008 counsel for the parents made an oral application for an order against the maternal grandfather pursuant to s 118(1)(c) of the Family Law Act 1975 and I have received written submissions from the maternal grandfather in respect of that application.
The maternal grandfather’s application
On 20 February 2008 the maternal grandfather filed an Application for Final Orders in the following terms:-
1.Order that [the maternal grandfather] be given access to his four children [sic] [L, E, M and T] in the marriage between [the father] and [the mother] every second weekend on a Sunday for three hours except on religious holidays or school holidays.
2.A no costs order.
3.An order that during the access visit to the maternal grandfather, the relatives of the four children, namely [the great uncle, his wife and his son, and the maternal great grandparents] also have access to the four children.
4.That the access be conducted at the premises known as [N Street].
5.That one or both parents of the four children deliver them to [N Street] for access.
6.That one or both parents of the four children collect them from [N Street] following the access.
7.Order that the AVO dated 23.10.2007 for the four children be set aside.
The maternal great grandparents’ application
On 11 July 2008 the maternal great grandparents filed an Application for Final Orders 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 60B(2)(b) of the Family Law Act 1975;
2.That the parents or their agents bring the four great grandchildren to our home for contact and collect them after contact;
3.That Order 1 & 2 be implemented expeditiously in view of the maternal great grandfather’s age and health.
4.We seek short notice.
PROCEEDINGS TO BE HEARD TOGETHER
On 7 August 2008 I made, amongst others, the following order:-
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.
Whilst I did not formally consolidate the proceedings filed by the maternal grandfather on the one hand and by the maternal great grandparents on the other, it is proper and convenient to provide the reasons for the orders that I make in respect of the parents’ application for summary dismissal and alternate orders, in the one document because:-
1.The parents’ application relates to both the application filed by the maternal grandfather and the application filed by the maternal great grandparents.
2.I have ordered that the maternal grandfather’s application and the maternal great grandparents’ application be heard together for reasons I have already given on 7 August 2008.
3.The applications involve a significant common substratum of facts.
DOCUMENTS READ AND RELIED UPON
Not all material read is relied upon for all purposes. As set out below, the parents’ application for summary dismissal of the maternal grandfather’s case is to be considered on facts asserted in the maternal grandfather’s case, issues which the maternal grandfather wishes to explore at the final hearing and relevant facts raised by the parents which the maternal grandfather has accepted and replied to. Whilst the application for summary dismissal of the maternal great grandparents’ case is to be dealt with upon facts asserted by the maternal great grandparents and relevant non contested facts raised by the parents, it would be unrealistic to ignore the connection between their application and the maternal grandfather’s application.
The maternal grandfather’s documents
1.The maternal grandfather’s application filed 20 February 2008;
2.Affidavit of the maternal grandfather sworn 20 February 2008;
3.Affidavit of the maternal grandfather sworn 8 March 2008;
4.Affidavit of the maternal grandfather sworn 15 May 2008 (comprising two separate ring binders);
5.Affidavit of the maternal grandfather sworn 19 May 2008;
6.The maternal grandfather’s final pre-hearing submissions filed 4 June 2008;
7.The maternal grandfather’s written submissions filed 25 August 2008;
8.Affidavit of the maternal grandfather sworn 2 October 2008;
9.Affidavit of the maternal grandfather sworn 7 October 2008;
10.Report of Professor P, consultant psychiatrist dated 21 October 2008;
11.Letter forwarded by the maternal grandfather directly to chambers on 31 October 2008 enclosing a copy of Medical Tribunal of NSW orders dated … 2008 – a copy of the relevant documentation on Parental Alienation Syndrome that was made available to Professor P and further submissions about Professor P’s opinions on the parents’ credibility;
12.Submissions by the maternal grandfather filed 3 November 2008 (which encloses a complaint by the maternal grandfather against Professor P);
13.The maternal grandfather’s final submissions filed 4 November 2008;
14.Further submission filed by the maternal grandfather on 5 November 2008 enclosing an affidavit sworn by the maternal grandfather on 5 November 2008 in support of an application for reinstatement as a medical practitioner.
In relation to the maternal grandfather’s written submissions, I take into account assertions of fact in those documents even though they are not otherwise verified in his affidavit material.
On 28 October 2008 the maternal grandfather foreshadowed that he also wanted to rely upon an affidavit which was not yet in existence by a Professor P, who is a forensic psychiatrist. The maternal grandfather advised that Professor P had seen him after Professor P had been appointed by the Attorney General of NSW, the Attorney General acting for the NSW Medical Board. Twenty ring binders of material had been provided to Professor P who had then spent ten hours with the maternal grandfather. The maternal grandfather indicated that Professor P believed in the existence of a condition called Parental Alienation Syndrome and would be giving evidence about that in his report. In addition, the maternal grandfather said Professor P had reached conclusions as to the likelihood of the maternal grandfather being involved in the alleged sexual abuse of his daughter, based on reading the material that she had filed in this case.
The report of Professor P, on the maternal grandfather’s own admission, did not in fact deal with those topics. The legal representatives for the mother and the father have objected to the use of the report by the maternal grandfather and in the alternative have submitted it should be given little weight. I have admitted the report which does say some things about the maternal grandfather’s personality upon which I place some weight but otherwise I give the report no weight.
The maternal grandfather also relies upon exhibits which he tendered. Amongst these, the maternal grandfather tendered two folders of photographs which became Exhibit “F”. He sought to give oral evidence because he wanted to explain, with feeling, the events depicted in those photographs. I did not allow him to do so. The first album entitled “BMB’s copy” is a series of photographs taken during the period of time that the mother was growing into a young woman and at times when she was with her father. There are also photographs of the mother and the maternal grandfather together at social events and of the mother’s wedding.
The second album is an album which contains some photographs of the maternal grandfather and the mother, when she was a young child. There are other photographs of the mother with the maternal grandfather when the mother was older (including wedding and graduation photographs) and photographs that have been taken in that period of time which would have been between September 1997 to January 1998 when the maternal grandfather had some contact with the eldest child, L. In almost all the photographs the subjects seem happy. In most of the photographs, it is clear the subject of the photographs is aware the photographs are being taken and are posing for the photograph.
The maternal great grandparents’ documents
1.The maternal great grandparents’ application filed 1 July 2008;
2.Affidavit by the maternal great grandfather sworn 30 June 2008;
3.Affidavit by the maternal great grandmother sworn 30 June 2008;
4.Affidavit of Dr R sworn 24 June 2008;
5.Submission of the maternal great grandparents dated 8 July 2008;
6.Affidavit by the maternal great grandmother sworn 8 July 2008;
7.Affidavit by the maternal great grandfather sworn 8 July 2008;
8.Affidavit of Dr J sworn 24 September 2008;
9.Further affidavit of the maternal great grandmother sworn 28 October 2008.
The parents’ documents
1.Affidavit of the mother sworn 12 May 2008;
2.Written submissions on behalf of the parents filed 25 July 2008;
3.Further Amended Response by the parents to Initiating Application filed 20 August 2008;
4.Affidavit of the mother sworn 3 September 2008;
5.Affidavit of the father sworn 3 September 2008;
6.Letter from Barkus Edwards Doolan dated 3 November 2008, raising an objection to the admission of the report of Professor P and other material forwarded under cover of the maternal grandfather’s letter of 31 October 2008;
7.Letter received from Barkus Edwards Doolan dated 4 November 2008, objecting to the relevance of material filed late by the maternal grandfather and making a submission as to the weight that material should be given;
8.Letter received from Barkus Edwards Doolan dated 9 December 2008 enclosing a copy of Church v T Overton & Anor [2008] FamCA 965.
FACTS ASSERTED IN THE MATERNAL GRANDFATHER’S CASE
The maternal grandfather is the father of the mother.
The mother is married to the father and they are the parents of L, E, M and T.
The maternal grandfather was born in 1946 and is 62 years of age. He was deregistered as a medical practitioner by the Medical Tribunal of NSW in 2000.
The mother and the father married in 1996.
The maternal grandmother, the maternal grandfather’s former wife and the mother’s mother, was awarded custody of the mother in 1982 by Nygh J in proceedings in the Family Court of Australia.
From 31 August 1997 to 1 January 1998, the maternal grandfather says he had regular contact with his eldest granddaughter, L, in babysitting her in her parents’ absence, feeding her, burping her and changing her nappies as L’s needs dictated at the time. The maternal grandfather says that in this period the relationship between L and himself was good and that the parents have never alleged that the maternal grandfather did not properly care for his granddaughter, L, during the 1997/1998 period.
In late 1997 the mother accused the maternal grandfather of incest for the first time. The maternal grandfather says that in late 1997 the mother instructed the father to make allegations of rape against the maternal grandfather and his brother, Great Uncle C, to their mother, the maternal great grandmother.
The maternal grandfather accepts that the mother, at the present time, subjectively believes that she had suffered violence and sexual abuse (incest) at the hands of the maternal grandfather from when she was between the ages of 3 and 14 years. This belief is set out in the mother’s signed and witnessed application for an AVO dated 2 August 2007.
The maternal grandfather denies he has ever had an incestuous relationship with the mother.
It is part of the maternal grandfather’s case that the mother accused him of:
(a)performing a termination on her in a hospital setting in the presence of her husband;
(b)raping her;
(c)incest;
(d)violence; and
(e)making comments such as “I will cut off your nipples”.
Since early 1998, apart from chance meetings, there has been no contact between the maternal grandfather or the maternal great grandparents on the one hand and the mother and the father on the other.
In early 1998 L was only a few months old and the other children had not yet been born.
The maternal grandfather says that between 1998 and 2007 he has had “chance meetings” with his daughter, the mother, on approximately ten occasions.
In 2005, the Supreme Court of New South Wales found that the maternal grandfather was a vexatious litigant and made an order that the maternal grandfather not, without leave of the court, institute proceedings in any court.
On 20 July 2007 the maternal grandfather says that he met his daughter on O Road. The maternal grandfather says he asked the mother, “why do you lie?” He says she answered, “I have nothing to say to you”.
On 1 August 2007 the maternal grandfather says he introduced himself to L and E, who were in close proximity to their mother.
On 2 August 2007 the mother applied for the AVO.
The AVO made at a Local Court in October 2007 protects the following people:-
[The mother], [the father], [L], [E], [M] and [T]
The maternal grandfather is subject to the following orders as defendant:-
1.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons or a person with whom the protected persons have a domestic relationship.
2.The defendant must not engage in conduct that intimidates the protected persons or a person with whom the protected persons has a domestic relationship.
3.The defendant must not stalk the protected persons or a person with whom the protected persons has a domestic relationship.
4.The defendant must not approach or contact the protected persons by any means whatsoever, except through the defendant’s legal representative.
5.The defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purposes of education or child care or other specified premises [no other premises are specified].
The maternal grandfather applied for leave to revoke the AVO or alternatively applied for leave to appeal the length of the AVO so that its duration was reduced from 5 years to 1 year from the date of its grant in the Supreme Court of NSW. The matter was heard in September 2008. The maternal grandfather’s application for leave was dismissed by the Supreme Court.
The maternal grandfather worked as a medical practitioner from 1975 to September 2000 when he was deregistered by the Medical Tribunal of NSW. The maternal grandfather says he applied to be reregistered as a medical practitioner on … September 2007 pursuant to s 92 of the Medical Practice Act 1992 (NSW), but alleges the application was unduly delayed to mid 2008 by subterfuge perpetrated by the High Court of Australia in Bemert v Health Care Complaints Commission [citation removed] ([ … ] July 2008). It is a matter of public record that on 31 July 2008 Justices Gummow and Kiefel dismissed an application by the maternal grandfather for special leave to appeal, in excess of five years out of time, against a decision of the Court of Appeal of the Supreme Court of New South Wales. In 2002 the Court of Appeal had found that none of the 100 grounds of appeal raised by the maternal grandfather established that the Tribunal had made any error of law when it had found, upon inquiry into two complaints, that the maternal grandfather had engaged in unsatisfactory professional conduct and professional misconduct within the meaning of ss 36 and 37 of the Medical Practice Act 1992 (NSW). The maternal grandfather says that this matter will be referred to the International Criminal Court (ICC) after three legally qualified expert referees make their findings on the documentation.
The maternal grandfather, saying that he was mindful of the Australian judicial conspiracy against him in several jurisdictions, applied in September 2007 to the ICC to assess, investigate and make findings on his allegations and for intercession by the highest court in the world. The maternal grandfather says that such a conspiracy becomes obvious when two separately constituted courts of appeal on the same issue and the same evidence of the same witnesses make a contradictory and irreconcilable findings on “the de facto issue” after more than 80 full hearing days of litigation in the Supreme Court of New South Wales, and when the maternal grandfather is finally successful with the de facto issue the Court of Appeal fails to award him costs of more than $1,000,000.
The maternal grandfather says that there are currently various pieces of litigation and applications in several jurisdictions as a consequence of his de-registration, including an application to the ICC filed 11 September 2007 “to investigate and bring to justice the HCCC and the 17 corrupt Australian judicial officers, and the return of my estate valued at over $10,000,000.”
On 28 October 2008, the maternal grandfather told me from the bar table that the figure of 17 Australian judges whom he has reported to the ICC has now increased in number to 20.
The maternal grandfather claims the Chairperson, Blanch CJ, of the Medical Tribunal of NSW wilfully perverted the course of justice by authorising the prosecution of the Health Care Complaints Commission (HCCC) complaint on 2 September 1998 that was in breach of s 48 of the Medical Practise Act 1992 (NSW).
The result of the maternal grandfather’s application/complaint to the Judicial Commission of New South Wales filed 14 January 2008 to have Blanch CJ (the Chief Justice of the District Court of New South Wales) removed from office is not clear on the evidence.
The maternal grandfather says he was deregistered by Cooper DCJ, Deputy Chairperson of the Medical Tribunal of NSW in breach of s 154(2) of the Medical Practice Act 1992 (NSW) to the exclusion of the other three members and that deregistration was unlawful and Cooper DCJ wilfully perverted the course of justice by failing to detect the breaches and criminality of the HCCC and the NSW Medical Board during the hearing.
The maternal grandfather claims the HCCC and the NSW Medical Board in unison perverted the course of justice.
As noted above, the maternal grandfather wishes to rely on the report of Professor P prepared on 21 October 2008. The report is of no relevance in these proceedings apart from providing some insights as to the maternal grandfather’s personality.
On page 15 of the report Professor P notes that the maternal grandfather has “moderate obsessional traits” and is “mildly compulsive in matters of interest or importance to him”. On page 20 of the report, in giving his opinion regarding the mental status of the maternal grandfather, Professor P addresses the issue of whether the maternal grandfather suffered from a recognisable/diagnosable personality disorder;
On the totality of information available to me I do not have evidence that [the maternal grandfather] suffers currently from any DSM IV TR Axis II personality disorder. Further, it is unlikely that the applicant suffered from any DSM IV TR Axis II personality disorder in the past.
Professor P adds on page 20 of the report that the maternal grandfather has:
… moderately strong obsessional traits within his personality structure. Additionally, some features of his behaviour (particularly with regard to litigation) may be characterised by obsessional traits within his personality structure.
As to the issue of contrition, Professor P notes that he believes the maternal grandfather is ashamed of his actions in the past and has insight into his behaviour, but that he cannot provide a conclusive opinion as to contrition (page 23 of the report). On page 24 of the report Professor P gives further opinion as to whether the maternal grandfather suffers from a personality disorder:
There is no indication that the applicant suffers from a diagnosable personality disorder and I doubt that he is impaired in this sense. The issue of [the maternal grandfather] having personality traits of importance warrants further consideration. On my assessment, he has significant traits of obsessionality and some traits of compulsiveness…. The possibility that he might have anti-social personality traits is harder to determine.
It seems beyond doubt that the maternal grandfather is significantly obsessional about litigation and his involvement in court cases.
ISSUES WHICH THE MATERNAL GRANDFATHER WISHES TO EXPLORE AT THE FINAL HEARING
The maternal grandfather says, and I do not doubt him, that he intends to vigorously pursue the parenting proceedings.
The maternal grandfather seeks that the following matters inter alia, be the subject of exploration by him at any hearing of the matter:-
(a)Whether the allegations made by the mother about suffering violence and sexual abuse by the maternal grandfather and his brother are true.
(b)Whether the mother suffers from Parental Alienation Syndrome.
(c)Whether the mother suffers from depression.
(d)Whether the parents suffer marital disharmony that has impacted on their children.
(e)The details of the mother’s psychiatric therapy for the last six years due to her marital difficulties.
(f)Whether any psychiatric illness suffered by the mother poses an unacceptable risk to her children while they are in her care.
(g)Whether E suffers from Grandparental Alienation Syndrome.
(h)The results of a psychiatric assessment of the mother, her mother and her sister.
Originally, the maternal grandfather described a decade of emotional abuse by his elder daughter in wilfully depriving him of contact with her children (his grandchildren) as her act of wickedness.
The maternal grandfather asserts that the mother suffered from depression since she was 17 or 18 years of age.
The maternal grandfather claims the mother concocted grave, yet false allegations of incest and other allegations without particularising them with threats of NSW Police action against the maternal grandfather, using the proceedings for a collateral purpose to threaten the maternal grandfather.
The maternal grandfather claims the mother concocted allegations in her affidavit of 12 May 2008 and paragraphs 10 to 13.4 inclusive, “which this court may see fit to disregard in view of the applicant, a former medical practitioner, alleging that she is, and has been, suffering from a mental illness since age 6, namely parental alienation syndrome”.
Now, referring to the sexual abuse allegation made by the mother, the maternal grandfather says:-
She, God bless her, cannot be indicted by any court for giving false witness, because she is bona fide suffering from psychiatric illnesses of depression and parental alienation syndrome.” (in another place the maternal grandfather repeats this but replaces “God bless her” with “poor darling”)
The maternal grandfather says that in late 1997, he and his then de facto wife visited the mother and the father at their unit at B. They had come to babysit L, as was their usual routine for the previous two to three months. On that occasion, the maternal grandfather says the mother vehemently accused him of incest for the first time. The maternal grandfather’s de facto wife came to the maternal grandfather’s defence and argued with the mother that it could never have occurred. The maternal grandfather says the mother became enraged and threw them out.
The maternal grandfather says the father in late 1997 conferred with the maternal great grandmother and accused the maternal grandfather and his brother Great Uncle C of having raped the mother (age or dates were not specified) and Great Uncle C of having had an incestuous relationship with his niece, the mother. Thereafter all voluntary contact ceased between the maternal grandfather, his extended family members and the mother and the father. The maternal grandfather says he and his brother were devastated by the false accusation.
The maternal grandfather says some years ago when he approached E in the presence of the father in a park, the father said to him in the presence of the child, “Go away you bastard”.
The maternal grandfather says the “penny only dropped” when he read the mother’s affidavit of 12 May 2008 and formed an expert medical opinion (having practised medicine for 25 years) that his elder daughter was suffering from depression coupled with Parental Alienation Syndrome within a matrix of marital disharmony. The maternal grandfather says this was admitted to the maternal great grandparents by the father in 1998 while the father accepted a lift in their car to avoid getting drenched in the rain and the mother, on subsequently hearing of the disclosure, punished the father for his admission. The maternal grandfather, immediately after having made the psychiatric diagnoses of the mother in May 2008, took steps to notify the NSW Police Force with regard to the complaint being laid against him which he asserts was riddled with false allegations. In addition, the maternal grandfather notified the NSW Department of Community Services (DoCS) with regard to evaluating the mother as a potential risk to her children and advised DoCS to regularly provide support to the mother should the need arise. The maternal grandfather, during submissions, referred to the letter he had written which was in evidence (Annexure “MBM 5” to the maternal grandfather’s affidavit sworn 19 May 2008). The maternal grandfather had written a letter to DoCS warning them about the risk to the children in their mother’s care. The maternal grandfather says his letter to DoCS was written when he imaged his daughter “not to be the full quid” and prior to the penny having dropped on 12 May 2008 that she suffered from psychiatric illness that exonerates her legally from bearing false witness.
There is no evidence before me that DoCS have made any assessment that the children are at any risk in the care of their parents or have taken any action arising from the maternal grandfather’s letter in May 2008.
The proposed criminal charges against his daughter were when he perceived her “not to be the full quid”. Now that he says he has diagnosed her as being psychiatrically ill he has formed the opinion that even if she were found by a court to have deposed false evidence, her psychiatric illnesses would exonerate her of any wrongdoing. The maternal grandfather says “[f]ar be it for a former medical practitioner to prosecute a psychiatrically afflicted patient, especially his favourite elder daughter”.
In his submissions to the Supreme Court of New South Wales, when seeking leave to appeal against the AVO, the maternal grandfather says:-
In view of the complainant’s affidavit of 12 May 2008, the applicant was able to diagnose on the basis of his daughter’s evidence therein, that his elder daughter suffers from parental alienation syndrome. Until she has been appropriately treated with an affirmative response to the treatment, the applicant has the insight to determine that all future contact would not be beneficial to either party.
There would be an issue in the final hearing as to the existence of Parental Alienation Syndrome. The maternal grandfather also refers to the concept of Grandparent Alienation Syndrome. This is a syndrome which the maternal grandfather asserts exists. I invited the maternal grandfather to convince me that Parental Alienation Syndrome was not uncontroversial. In an exchange during submissions, I indicated that I thought the “syndrome” highly controversial, probably discredited and not recognised in the DSM IV.
Part of the material that the maternal grandfather provided by way of letter on 31 October 2008 enclosed a paper by Associate Professor Carolyn Quadrio entitled “Parental Alienation Syndrome in Family Court Disputes”. The Associate Professor suggests in that paper that parental alienation syndrome has neither validity nor utility.
The maternal grandfather says Grandparent Alienation Syndrome is demonstrated by the fact that the mother has instructed the children to call the police if they see him. I note that at the current time, if the maternal grandfather approached the children, he would be committing a criminal offence.
The maternal grandfather says the nature of the mother’s allegations of violence, hurtful comments and incest from when she was between the ages of 3 and 14 years stem from psychiatric illness and this Court has a primary responsibility to investigate such grave allegations and, if proved to be frivolous and vexatious of its own motion, to order medical treatment for the afflicted Mrs Swallow.
The maternal grandfather wrote a letter (Exhibit “B”) on 28 May 2008 to the parents’ lawyer. The maternal grandfather said:-
Please find enclosed a copy of letter I received from the Crown Solicitor’s Office signed by Anina Johnson dated 23 May 2008. That should confirm that Mr Campton of Counsel was flogging a dead horse with attempting to rely on a leave to file the initiating process in a Federal Jurisdiction. That should now put to rest the s 84(4) issue.
I seek to inform you that I will make representation to Justice Watt [sic]of the Family Court on the 27.6.2008 for the following Interim Orders, namely:-
1.That the AVO being oppressive and not in the interest or welfare of my four grandchildren be set aside and the First Respondent pay her own legal costs;
2.A psychiatric assessment of my elder three grandchildren for grandparent alienation syndrome so as to identify all the perpetrators for the Family Court;
3.A psychiatric assessment of my elder daughter, the First Respondent and her mother, [the maternal grandmother] - the perpetrator of my daughter’s mental illness;
You may wish to discuss with your clients the withdrawal of the AVO prior to its being set aside by Court order, and suitable access arrangements to my four grandchildren by consent.
As indicated above, the maternal grandfather also wants his former wife, the maternal grandmother, psychiatrically examined. The maternal grandfather says he harbours no ulterior motive for wishing to have his ex wife, who he believes to be the perpetrator of the mother’s psychiatric illnesses (he believes the mother to have, amongst other things, Parental Alienation Syndrome) being identified and assessed by a specialist psychiatrist as to her state of mind. The maternal grandfather says the psychiatric assessment of the grandmother will be confidential and therefore not subject to the maternal grandfather’s perusal and argues that the expert report may assist the mother’s treating specialist psychiatrist in his evaluation and subsequent treatment of the mother and her alleged mental illnesses “in a matrix of marital disharmony”.
In his material the maternal grandfather refers to very old proceedings (1980 onwards) with the maternal grandmother.
At paragraph 42 of his submissions filed 25 August 2008, the maternal grandfather sets out the four separate pieces of litigation that he says he was involved in with his former wife during the period 1982 to 1984. He does not, in that list, mention the proceedings in the High Court of Australia.
However, at paragraph 34 of his affidavit of 2 October 2008, the maternal grandfather says:
I recall my own experience in the Family Court in [Bemert & Bemert] where I was ‘disempowered and unable to protect my children’ by Nygh J’s corrupt and perverted orders of 1982 and 1983 that lead 26 years later and directly resulted in this current situation. The errant juridical officer of the Family Court [the late Nygh J] wilfully perverted justice by failing to be mindful of the powerful evidence of Dr [D] with regard to the maternal abuse and physical assaults my elder daughter had to tolerate from her mother, [the maternal grandmother] over the years. The judicial pervert [the late Nygh J] wilfully desecrated every rule in the Family Law Act 1975 with regard to the welfare of a child in making his orders. Although he was thrown out of the [Bemert & Bemert] proceedings and his orders set aside on appeal in 1984, his perverted orders have adversely affected both my daughters more so after his demise.
At paragraph 35(iv) of the maternal grandfather’s affidavit sworn 19 May 2008 the maternal grandfather swears:
The ex parte application of the husband to the High Court of Australia adjudicated in Canberra by Brennan J in 1983 to have Nygh J removed as adjudicator in [Bemert v Bemert] matter no. … with Nygh J being thrown out as adjudicator in any further family court proceedings in [Bemert v Bemert]i. [original emphasis]
Clearly on the maternal grandfather’s oath he is asserting that Justice Nygh had been “thrown out of the [Bemert & Bemert]” proceedings.
It is a matter of public record that the maternal grandfather appeared before Brennan J in the High Court of Australia on 24 September 1983 in Canberra. That matter is reported as Re Nygh: Ex parte – [Bemert] (1983) 9 Fam LR 199. I set out in full below what Brennan J said:-
This is an application for an order nisi for a writ of prohibition directed to a judge of the Family Court of Australia. The applicant is a party to proceedings against his former wife in that court and there has been a series of applications before the judge relating to the custody of and access to two infant daughters of the marriage.
Dr [Bemert] seeks an order that the judge be prohibited from making any further orders in the case of [Bemert], […], upon the ground that the judge has displayed bias against him. A similar allegation was made in R v Anderson; Ex parte Bateman(1978) 21 ALR 56, and it was there held by this court that that ground did not entitle an applicant to prohibition.
However, I should not wish to refuse the application by applying the principle in Anderson's case without reference to the substance of argument addressed by Dr [Bemert] before me this morning. His allegation seems to be that the orders made by the judge — orders which excluded Dr [Bemert] from access to the children, at least for a time — are to be accounted for by the bias of the judge.
The material which he has furnished is wholly insufficient to support that allegation even if Anderson's case did not stand in the way. Where the only form of bias suggested is personal prejudice, it is insufficient to show merely that the judge holds strong opinions on the relevant subject engendered by the conduct of the proceedings before him. And that is the case here. An unfortunate incident upon which Dr [Bemert] heavily relies is the action of the judge in tearing up a document in the form of an affidavit, signed by and in the handwriting of one of the children — a daughter aged seven and a half years. The judge had occasion to refer to this incident when disposing of an application by [Dr Bemert] that he should not sit to determine an application then before him. The judge said:— “One matter which obviously has worried the husband in this case is the episode in which I tore up an affidavit filed by him, which had been sworn by his seven year old daughter. As I pointed out to him at that time, the filing of an affidavit by a child in this court is expressly prohibited by the regulations.
I pause here to interpolate that in the proceedings before me this morning, Dr [Bemert] has informed me that he was unaware of the relevant regulation, which is reg. 116(6), at the time that he filed the affidavit by his child. I resume the quotation:—
“It is a fundamental rule in this court that children are to be kept out of the proceedings. Watson J in his decision in Cooper v Cooper (1980) 6 Fam L R 288 has made it clear that the filing of such an affidavit contrary to the regulations amounts to a contempt in the face of the court. I did not wish to prosecute the husband because I accepted that he had acted in an excess of zeal and ignorance of the regulations. It now appears that the husband would have preferred me not to have destroyed the evidence, but to have charged him and dealt with him accordingly. If I showed anger then it was both anger and despair at the husband's continued insistence upon involving the children in this litigation and his total inability to understand what the welfare of his children requires. It is obvious from today's application that his attitude has not changed one single bit. For those reasons, therefore, I dismiss this application for my disqualification.”
And there I end the quote.
However, what the judge went on to say is sufficient, really, to dispose entirely of the present application. Dr [Bemert] wishes to prohibit the judge from sitting further in applications in the proceedings between himself and the other party to the marriage. The judge has already disposed of that application by saying this, and I resume the quote:—
“I want to say, however, that the converse does not apply. If fresh applications are made, and a new application for custody is currently before this court in the process of pleading, I do not consider myself to be the judge who should exercise exclusive jurisdiction over all matters affecting the [Bemert] family until the youngest child turns 18. I will, therefore, direct the Registrar that any further applications made in this matter be listed by him before any judge as he sees fit having regard to the business of the court.”
There I end the quotation.
Moreover, it appears that Dr [Bemert], having had an opportunity to appeal against the orders made by the judge, either did not do so or is yet to argue the appeals instituted against those orders. The application now made is not for an order nisi to prohibit the further carrying out of any of those orders. It is an application calculated to affect the constitution of the Family Court which is to entertain further applications in the regrettable battles being waged over these children. Such an application for an order nisi for prohibition is misconceived. The application for an order nisi must therefore be dismissed.
It can be readily seen that the maternal grandfather has misrepresented what happened in the High Court of Australia and the assertion that Nygh J was thrown out of the proceedings appears factually inaccurate.
The maternal grandfather also proposes as part of the hearing that the mother’s sister in Israel also be psychiatrically assessed. The maternal grandfather says that the only motive he has is to see the mother happy and psychiatrically well adjusted and that will only occur if she, her mother, her sister in Israel and he are all psychiatrically assessed, with the aim of assisting the mother in her recovery from her psychiatric afflictions.
It is part of the maternal grandfather’s case that these proceedings may in fact, if allowed to continue, have the effect of making the mother seek treatment for her illusionary problems and erroneous beliefs.
The decision of the Full Court of the Family Court of Australia in Jacks & Samson [2008] FamCAFC 173 is a case where grandparents successfully obtained an order for the psychiatric treatment of their daughter in a parenting case involving their grandchildren. The Full Court in that case referred to the exceptional circumstances of that case, where although the mother had not consented to the order made, she had given sworn evidence that she would attend for psychiatric treatment. The Full Court concluded that, pursuant to s 67ZC of the Family Law Act 1975, it was necessary for the welfare of the children in that case for the mother to have the treatment. In doing so the Full Court distinguished previous authority (L v T (1999) FLC 92-875; 25 Fam LR 590) which was to the effect that stand alone orders requiring psychiatric treatment were not within the normal powers contained in Part VII of the Family Law Act 1975. The maternal grandfather may take some comfort from Jacks & Samson (supra) but the facts of this case are very different. There is no prospect that the mother would consent to any order sought by the maternal grandfather for psychiatric treatment. She is currently receiving treatment. The frequency of that treatment has increased since litigation involving the maternal grandfather has commenced. There is no suggestion in this case that the children’s parents will not remain their primary care givers and they are not seeking any parenting orders (to which a condition of psychiatric treatment might otherwise attach). I do not see any prospects in the circumstances of this case that the Court would order further and different treatment for the mother relying upon Section 67ZC of the Family Law Act 1975.
I am unable to see how the maternal grandfather’s suggestion that orders should be made for psychiatric treatment of the maternal grandmother and his other daughter in Israel could be made within this Court’s power.
At the same time, it is part of the maternal grandfather’s case that the children will see his parents who are the only surviving maternal great grandparents of the mother and the father’s children.
The maternal grandfather claims that the mother’s conduct in earlier proceedings (matter no. …) was dreadful. The maternal grandfather says the mother failed to give her crucial evidence and refers to the Probate judgment of September 1998 where the Justice invoked the principle of Jones v Dunkel (1959) 101 CLR 298 against the maternal grandfather.
The maternal grandfather will wish to bring the mother’s credit into question. He asserted that during the proceedings before the Magistrate when the AVO was made the mother had, under oath said that she had not been sexually abused by the maternal grandfather’s brother and that that has to be compared with what she now says in her affidavit.
The mother’s affidavit sworn 3 September 2008 at paragraph 7 says the following:
I was frequently sexually assaulted by my father in his bedroom and on one occasion I was sexually assaulted by my father and his brother, [Great Uncle C], in the adjacent bedroom.
In addition, the affidavit of the father sworn 3 September 2008 at paragraph 9 makes reference to the alleged sexual abuse of the mother by the maternal grandfather and his brother Great Uncle C.
The maternal grandfather has tendered a transcript of proceedings in a Local Court in October 2007 in Swallow v Bemert.
The following is recorded at page 30 (lines 20 - 58) of the transcript:-
DEFENDANT
Q. You gave evidence that I accused you of a lie when you said that [C], what I considered was that [C], what I, you said about [C] was a lie. What did you say about [C] that was a lie?
WALLACH: I object
HER HONOUR: What’s the relevance of this question?
WITNESS: I didn’t say anything.
DEFENDANT: The relevance is that she’s accused my brother of raping her, a medical practitioner, its very big--
HER HONOUR: Excuse me
DEFENDANT: That’s the relevance. So when we’re --
HER HONOUR: It might stun and amaze you if I told you that I don’t regard medical practitioners as gods in any way. So just because somebody’s a medical practitioner it doesn’t mean to say that they’re above the law or above reproach.
DEFENDANT: Yes your Honour.
Q. But you accused [C] of raping you, is that true?
A. No --
WALLACH: Your honour I object to this --
WITNESS: -- I said --
WALLACH: -- there’s absolutely no relevance to these proceedings.
As far as I can tell from that transcript, although the mother said “no” in response to a question about her uncle raping her she was not able to go on and say what it was she was saying her uncle had done. Whilst she said she was not raped by Great Uncle C, she did not say she had not been sexually abused by Great Uncle C. It is likely, at a defended hearing, that the maternal grandfather would wish to explore these allegations in detail.
FACTS ASSERTED IN THE MATERNAL GREAT GRANDPARENTS’ CASE
The maternal great grandparents have two sons, the applicant maternal grandfather and Great Uncle C.
Both parties are in receipt of Centrelink benefits.
Dr R assessed both maternal great grandparents as fit and proper persons to have contact with their great grandchildren and that they were not a risk to them.
The maternal great grandmother says that she got on well with the father, and that she first met him in 1990. The maternal great grandfather says that he first met the father in 1995 and since then has had many conversations with him.
In 1996 they attended the father and mother’s wedding.
They had regular contact with their granddaughter (the mother) and her husband (the father) until early 1998. From September 1997 to January 1998 the maternal great grandfather says that he and the maternal great grandmother would babysit L in their home and that they would pick up the child from her home in B. After this time all voluntary access ceased.
They attended their great granddaughter’s first birth birthday in her home at B.
They want to see their great grandchildren at weekly intervals.
In his submissions to me on 28 October 2008, the maternal great grandfather says there was no tension between him and the maternal great grandmother and the mother and the father until about 1998 and that prior to this time they were friends. The maternal great grandfather refers to a day at Coles Supermarket and this appears to be the end of contact in 1998. The maternal great grandfather says he did not make a fuss at that time because he did not want to exacerbate the situation. The maternal great grandfather was hoping that the situation regarding him and the maternal great grandmother seeing the children would improve. The maternal great grandfather says that due to their age that they just want to spend a bit of time with the children to establish the blood relationship and they do not have the strength for spending time for long periods. He says that he does not hold ill feelings towards the mother and the father and does not believe that they do towards him and the maternal great grandmother. The maternal great grandfather says that he and his wife are on the verge of “passing off” and that he has a right to see the children on the basis that they are blood relatives.
On 28 October 2008, the maternal great grandmother submitted that she and the maternal great grandfather had become strangers to the children, that it was not of their own choosing and that the children were never allowed to see them. They babysat L for a long time before she was one year old. She says that despite her age she can look after a child, and she still does housework, is well educated and was a teacher by profession. In other words, she has extensive experience with children.
The maternal great grandmother says that she helped bring up her granddaughters and saw her role as a teacher as more than teaching but also to help the children grow. She feels she did a good job raising her own children and her grandchildren and treated them as her own. She says that the mother can have a very vivid imagination which seems to stem from her childhood.
The maternal great grandmother makes reference to the fact that she has not been well as of late. She refers to her affidavit evidence regarding meeting the children in the restaurant (see paragraph 17 of the maternal great grandmother’s affidavit sworn 30 June 2008) and that there was no tension at all between her and the mother. In addition, the children appeared to be responsive to her but the mother had said that she didn’t think there would be further contact in the future between them and the maternal great grandparents. She also makes reference to her and the mother’s interaction at the beautician and that the mother drove her home because it was raining (see paragraph 14-15 of the maternal great grandmother’s affidavit sworn 30 June 2008). She says that only time will reveal whether she would be a negative influence on the children and she believes human relationships are over and above the law.
RELEVANT NON CONTESTED FACTS RAISED BY THE PARENTS
The parents and the children live together as an intact family.
The mother has been treated for post traumatic stress disorder by a therapist for over seven years. The parents have an absolute opposition to any form of direct or indirect contact between their children and the maternal grandfather, the maternal great grandparents and/or other extended members of the maternal grandfather’s family.
Although the maternal grandfather says that since on or about 2 January 1998, the respondents denied the applicant, the applicant’s parents, the applicant’s brother, C, and his nuclear family members access to and contact with the respondents’ four children, the more accurate statement is that after the allegations already referred to were made, that access was not sought by the maternal grandfather and his family and it was not offered by the parents.
The mother’s view is that the maternal great grandparents failed to protect her or realise what was going on whilst she was visiting her father in their household. The mother says that she experienced dysfunctional family dynamics during her childhood when she had to go and spend time with her father and that her father is a product of those dysfunctional family dynamics. Whilst it is not a matter of contention that the mother currently holds that view, it would be a matter of considerable contention, particularly from the maternal grandfather’s point of view, that the mother’s views were reasonably held.
The parents rely on a letter written by the maternal grandfather on 6 May 2008 to their lawyer in the following terms, inter alia:
It would appear that my application to have contact will be considered by the Federal Magistrate’s Court of Australia, but unfortunately, I prognosticate that it will be a long drawn out process, with a family report including the assessment of each of my three elder grandchildren, will have to be performed to assess the degree of their parental brainwashing, and [the parents’] current disposition to my application for access. I prognosticate that my daughter may be worn down to a frazzle with the prospect of a seven year incarceration for making false allegations and for deposing false evidence that can now be proved beyond reasonable doubt. It is likely that this proceeding may further impact adversely on her poor relationship with her current husband and my four grandchildren, as evidenced by her tantrum on 4.3.2008 on [address] for the benefit of the police and her incarceration at [...] Police Station on that date. I infer that she assaulted Ms Polina Kagan, my former legal representative who served your client the Federal Magistrate’s Court of Australia initiating process documentation.
It is my understanding that the Federal Magistrate’s Court of Australia is a discretionary jurisdiction, and as such, the Court would lean to the parents’ side, especially if both parents are adamantly opposed to my access to my four grandchildren. But, if the children want access to establish and be aware of their roots, and access is denied, their paternal great grandfather [now aged 87, fretful and in poor health] may not survive till they are aged 12 and their own good sense dictate their needs to meet the other side of the family, in congenial circumstances. [L] is now over 10 ½ and in less than 18 months will be able to decide for herself.
It is also my belief that the AVO was highly oppressive and ought to be set aside by the Federal Magistrate’s Court of Australia - I shall make an application for same within the next few days if you cannot convince my daughter to come to her senses and withdraw the AVO.
In Re Patrick: An application concerning contact (2002) FLC 93-096; 28 FamLR 579 Guest J held that a known sperm donor was not a “parent” as defined under the Family Law Act 1975 but could indeed be a person that was concerned with a child’s care, welfare and development and hence could apply for a parenting order under s 65C(c).
In Re J and M: Residence Application (2004) 32 FamLR 668, Walters FM held that the mother’s lesbian partner had standing and could apply for an order under s65C(c) because she was a person concerned with the care, welfare and development of the children.
In Venekatesan & Pawar (supra), Altobelli FM held that due to the maternal aunt and uncle not having a meaningful relationship with the child after the mother’s death they did not fall under s 65C(c).
See also R v M [2002] FMCAfam 279 where Driver FM held that a parent’s neighbour, who had been assisting the father as a McKenzie friend prior to the father’s suicide, failed to meet the threshold test of having a prior involvement with the care, welfare and development of the child.
Conclusion about the standing of the maternal great grandparents
I find there has been no meaningful contact for a period of about ten years and no contact at all with three out of the four children. There was nothing arising out of the affidavit material of the maternal great grandparents or their submissions that would indicate how the children seeing their maternal great grandparents would promote the interests of the children. The maternal great grandparents are effectively strangers to the children. Blood relationship is not enough. Nor is any benefit the maternal great grandparents might get from seeing their great grandchildren a matter of any weight. The degree or strength of the nexus or concern with the care, welfare and development of the children in the circumstances of this case are insufficient to satisfy the threshold test and I find that the maternal great grandparents do not have standing to press the application which they have filed.
For this reason, an order for the summary dismissal of the maternal great grandparents’ application should be made.
Are the applications for orders in the best interests of the children or in any event clearly untenable?
If my reasons as to why the maternal great grandparents do not have standing to bring the application in the circumstances of this case are wrong, then I still need to consider whether or not their applications are for orders which are in the best interests of the children or in any event clearly untenable.
I have found that there is no meaningful relationship between the children and the maternal great grandparents and on the evidence which I can take into account there is nothing to indicate how, in all the circumstances of this case, the children would benefit from the orders sought by the maternal great grandparents.
As discussed above the maternal grandfather originally made an application for parenting orders in favour of the maternal great grandparents. Counsel for the parents challenged the maternal grandfather’s right to do so. The maternal grandfather enquired of the Court as to whether or not it would be more appropriate for his parents to file an application seeking orders in their own favour.
I find that the maternal grandfather has had a substantial involvement in the preparation of the written material provided to the Court by the maternal great grandparents. An example of that was that on 28 October 2008 the maternal grandfather sought to file in his parents’ case an affidavit that his mother had sworn that morning. Given that his mother represented herself, I asked that he hand that document to her, which he did, and she then sought to file it. Counsel for the parents did not object to the filing of the affidavit.
The maternal grandfather gave evidence that, “My parents have cared for their grandson [the son of Great Uncle C] two days a week from his birth to date”. That evidence by the maternal grandfather is somewhat disingenuous given that the maternal great grandmother made it clear to me that her care for her grandson was only occasioned with the assistance of somebody else (the identity of which was not made known to me and I am unaware as to whether or not she was referring to her son or some other person).
The maternal grandfather says on the one hand that his father is well enough to look after the four children. On the other hand, he has complained and agitated that an injustice was done by not bringing his parents’ case on more quickly because of the fact that his father might imminently die. The maternal grandfather says “for their ages, both my parents cope with their various illnesses quite well, although my father’s cardiac function is severely compromised and together with his renal failure will further compromise his longevity. I rely on Dr [J’s] expert report filed in these proceedings”. At paragraph 3 of the maternal grandfather’s affidavit sworn 19 May 2008 the maternal grandfather provides a bleak diagnosis of his father’s health.
In his address to me, the maternal great grandfather referred to the fact that he was in the last stages of his life and that he wished his great grandchildren to know him. The maternal great grandmother also made similar statements. The maternal great grandmother’s most recent affidavit indicates that she was recently incapacitated to the extent that she was hospitalised and she was recovering from that illness. Paragraph 5 of the maternal great grandmother’s affidavit filed 28 October refers to her pain and her ability to concentrate prior to her operation in September 2008.
I find that the maternal great grandparents cannot fully engage in the care of the four children without assistance.
There was no satisfactory explanation in the affidavits of the maternal great grandparents as to why it was they had taken ten years to do anything about making the application that they now made to the Court. The unsatisfactory explanation I was given was that up until recently they were unaware that they were able to do so (as noted at paragraph 19 in my Reasons for Judgment delivered 7 August 2008.)
In relation to the lack of evidence about delay by the maternal great grandparents, counsel for the parents submitted that that was compounded when there was an accidental encounter in 2007 and the maternal great grandmother did nothing about that exchange, by way of commencing proceedings, at that time.
Counsel for the parents contended that given the health and capacity of the maternal great grandparents, there is a waft of an ulterior motive in relation to the applications that they have brought. They are very similar to the relief sought by their son who resides at the same house as his parents and it is agreed the maternal grandfather is the carer of his parents
It is a reasonable inference that the timing of the applications by the maternal great grandparents has been occasioned by the application made by the maternal grandfather. I find that the maternal great grandparents’ application is significantly connected to the maternal grandfather’s application.
I have indicated I intend to summarily dismiss the maternal grandfather’s application, primarily on the basis that it is not in the best interests of the children to do otherwise. If I did not do the same to the maternal great grandparents’ applications, then there is a high likelihood that the first order may become nugatory. It is likely that the maternal grandfather will be at the same residence as where the children will be if they spend time with their maternal great grandparents and the maternal grandfather is the great grandparent’s carer. Whilst it is not formally part of the maternal great grandparent’s application that I make an order under Division 11 of Part VII of the Family Law Act 1975, it is not part of the case presented by the maternal great grandparents that their son should be excluded at the time they see their great grandchildren. It is also clear that the effect upon the mother of having to be involved on a weekly basis with her father’s parents would be similar to (although maybe not as extreme as), the effect of having her children have a direct involvement with her father. This effect, as I have said, in turn may place the children at psychological risk.
I find that it is not in the best interests of the children for the maternal great grandparents’ application to proceed and in any event the maternal great grandparents’ case is clearly untenable. On this alternate basis, the application by the maternal great grandparents should be summarily dismissed.
Order for permanent stay and order for dismissal under Section 118(1)(a), Part 10.3 or Rule 11.04
The effect of an order for permanent stay of the maternal great grandparents’ application is similar to the order for summary dismissal and I would make that order on the basis of reasons already stated had I not made an order for summary dismissal. Again, for reasons already stated the application filed by the maternal great grandparents has no reasonable likelihood of success and there would, therefore, be a basis to make an alternate order for dismissal under Part 10.3 of the Family Law Rules 2004 had the primary order for summary dismissal not been made. It is not necessary to consider whether or not the application by the maternal great grandparents is vexatious.
Security for costs
In relation to the application for the maternal great grandparents to provide security for costs of $25,000.00, at paragraph 3 of the maternal great grandfather’s affidavit sworn 30 June 2008 he says that he is a pensioner and at paragraph 7 of the maternal great grandmother’s affidavit of 30 June 2008 she also says she is a pensioner.
I have not been informed as to who owns the property in which the maternal great grandparents live N Street, except the maternal grandfather’s statement to the Magistrate indicates that it probably is not registered in his name. I infer therefore that the maternal great grandparents own the property but they have not provided any other particulars of their financial circumstances.
As discussed above, there is no prospect that the maternal great grandparents could be successful. If the litigation was allowed to proceed, whilst it will not be as protracted and complex as proceedings that directly involve the maternal grandfather, I find that the maternal grandfather will assist his parents in the preparation of material and it would be likely that many of the matters concerning the maternal grandfather would be pressed as issues to be considered in the application of the maternal great grandparents. The maternal great grandparents have not accurately explained why it has taken ten years to bring these proceedings. On the information available, the parents’ ability to recover their costs against the maternal great grandparents may be problematic.
Accordingly I will order that, in the event of a successful appeal by the maternal great grandparents against my primary orders, the maternal great grandparents pay $25,000.00 by way of security for costs.
I certify that the preceding two hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
A/g Associate:
Date: 15 January 2009
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