Bemert & Swallow

Case [2009] FamCA 5


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)
Family Law Rules 2004 Part 10.3, r 11.04, Part 19.3
Supreme Court Act1970 (NSW) ss 19(1), 84 (now repealed)

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

  1. The application filed by Mr Bemert on 20 February 2008 (“the first application”) is summarily dismissed.

  2. 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,…

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Details
AGLC
Bemert & Swallow [2009] FamCA 5
Case
[2009] FamCA 5
Decision Date

CaseChat Overview and Summary

This matter concerned an application by a maternal grandfather, Mr Bemert, and maternal great grandparents, Mr and Mrs Bemert (Snr), for parenting orders to spend time with their grandchildren. The respondents, Mr and Mrs Swallow, sought the summary dismissal of these applications or, alternatively, a permanent stay. The court was also informed that Mr Bemert had previously been declared a vexatious litigant in other jurisdictions.

The primary legal issues before the court were whether Mr Bemert's application was frivolous or vexatious, and whether the maternal great grandparents had the standing to bring a parenting application under section 65C(c) of the *Family Law Act 1975*. Additionally, the court considered the impact of an apprehended violence order (AVO) in place against Mr Bemert, which contained conditions that Mr Bemert's proposed parenting orders would seek to negate. The court also addressed the question of security for costs.

Justice Watts found that Mr Bemert's application was frivolous and vexatious, particularly in light of his prior declarations as a vexatious litigant and the allegations of childhood abuse against him by the respondent mother. The court determined that Mr Bemert should be prohibited from instituting further proceedings under the *Family Law Act 1975* without leave. The applications by both Mr Bemert and Mr and Mrs Bemert (Snr) were summarily dismissed.

The court ordered the summary dismissal of Mr Bemert's application filed on 20 February 2008. It further ordered that Mr Bemert be prohibited from instituting any proceedings under the *Family Law Act 1975* without leave. In the event of a re-hearing, Mr Bemert was ordered to pay $50,000 as security for costs. Similarly, the initiating application filed on 1 July 2008 by Mr and Mrs Bemert (Snr) was summarily dismissed, with a provision for $25,000 security for costs should the matter be remitted for re-hearing. The parties were given leave to apply for costs.

Orders

Orders of the court

1.

The application filed by Mr Bemert on 20 February 2008 (“the first application”) is summarily dismissed.

2.

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.

3.

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.

4.

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.

5.

The initiating application filed 1 July 2008 by Mr and Mrs Bemert (Snr) (“the second application”) is summarily dismissed.

6.

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.

7.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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