Birkett and Birkett and Anor
[2017] FCCA 2503
•9 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRKETT & BIRKETT & ANOR | [2017] FCCA 2503 |
| Catchwords: FAMILY LAW – Summary dismissal Application by parents in relation to maternal Grandmother’s Application to spend time with children – parents and Grandmother totally estranged – Grandmother has not spent time with the children for approximately 18 months with limited time beforehand – principles in relation to summary dismissal – consideration of “best interests” of children also relevant factor – need to protect children from exposure to entrenched family discord – application granted. |
| Legislation: Family Law Act 1975 (Cth), Part VII, 60B(2), 64B Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; (2006) 80 ALJR 1100 Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720 Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213; [2010] FCA 1462 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 Whiteman & Newton [2013] FamCAFC 127 |
| Applicant: | MS BIRKETT |
| First Respondent: | MR BIRKETT |
| Second Respondent: | MS A BIRKETT |
| File Number: | CAC 768 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 7 September 2017 |
| Date of Last Submission: | 7 September 2017 |
| Delivered at: | Canberra |
| Delivered on: | 9 November 2017 |
REPRESENTATION
| Counsel for the Applicant Grandmother: | Ms M Davis |
| Solicitors for the Applicant: | Elringtons |
| Counsel for the Respondent Parents: | Ms R Curran |
| Solicitors for the Respondents: | Robinson + McGuinness |
ORDERS
The Grandmother be permitted to send birthday and Christmas cards to the children, Y and X, and their parents are directed to ensure that such communication is passed to the children;
Otherwise, pursuant to s.17A of the Federal Circuit Court of Australia Act 1999, the Grandmother’s Application, filed 3rd May 2017, be dismissed;
Absent any Application in relation to costs being filed within 14 days of the date of these Orders, each party is to pay his o0r her own costs.
IT IS NOTED that publication of this judgment under the pseudonym Birkett & Birkett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 768 of 2017
| MS BIRKETT |
Applicant
And
| MR BIRKETT |
First Respondent
And
| MS A BIRKETT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Formally, this is a “parenting matter” that involves an Application by the paternal Grandmother to spend time with her two Grandchildren. The parents of the children are implacably opposed to this occurring and seek to have the Grandmother’s Application summarily dismissed. What follows are my reasons for acceding to the parents’ Application.
Before getting to the “parenting aspect” of the matter per se, this proceeding poses the neat, somewhat nebulous but delicate conundrum: given the breadth of discretion under Part VII of the Family Law Act1975 (“the FLA”) in relation to parenting matters, using the standard test for summary dismissal set out by the High Court in Spencer v Commonwealth,[1] can s.17A of the Federal Circuit Court of Australia Act (“the FCC Act”) which provides for “summary dismissal” of proceedings, ever apply to a parenting Application (in this instance, the paternal Grandmother’s Application)?
[1] Spencer v Commonwealth (2010) 241 CLR 118.
On the Applicant Grandmother’s case (in which she seeks quite extensive Orders to enable her to spend regular time with her grand-children, Y, aged almost 12 years, and X, aged 10 years), s.17A of the FCC Act can never have any application in a parenting matter because (a) under Part VII of the FLA, the Court’s discretion is, in effect, at large, and (b) the generality of the interim Orders sought by her are of such a kind that it could never be said, with the requisite level of certainty, that they could have no reasonable prospect of being granted.
The Grandmother also contended that notwithstanding the very specific and quite wide final “time with” Orders sought in her Application, which were confirmed three times in her supporting affidavit (filed 3rd May 2017 – pars. 3(j), 31 & 32), they are actually more “aspirational” Orders to which the Court, and / or the Respondent parents need not have particular regard, either as a type of pleading or “particulars” per se.
Rather, Counsel for the Grandmother contended that the Final Orders sought were something akin to an ambit claim; and having regard to the Court’s wide discretion, and how parenting Orders are often determined, the Court was likely to grant some parenting Orders rather than none at all. In light of this, so it was said, s.17A of the FCC Act could never apply to a parenting Application.
Among other things, these submissions overlook the rather important point that there is nothing in either the FLA or the FCC Act that seeks to limit, let alone prevent, the application of s.17A of the latter Act from applying to parenting matters. Indeed, there is nothing at all that prevents its application to any Application that seeks relief, of whatever kind (subject only to the Court having relevant jurisdiction), in this Court. The way in which the section is to be applied is to be in accordance with the principles set out by the High Court in Spencer v Commonwealth and other cases set out later in these reasons. Accordingly, the general submission that s.17A of the FCC Act can never have any application in parenting matters must be rejected.
The Respondent parents argued that they (and the Court) should be able to rely on the specific orders sought by the Grandmother in this case as set out in her Application as filed (a) for the procedurally fair reason of knowing the actual (as opposed to any speculative, more generalised) case they have to meet (and the Court has to decide), and (b) for the function of determining, for the purposes of s.17A, whether the Orders as sought and the evidence relied upon for this case and the specific Orders sought in it (as opposed to any other, more limited, or general Orders that might otherwise be made by the Court at some non-specified time in the future) properly satisfied, or fell short of, the requisite standard set out in Spencer v Commonwealth, namely, that there was no reasonable prospect of success (on which more later in these reasons).
The Respondent parents’ argument in these respects, and in the light of the evidence provided to the Court, should be accepted in preference to the arguments advanced (and evidence filed) on behalf of the Applicant Grandmother. Giving every allowance for the breadth of the discretion in this Court that invariably attends parenting matters, that discretion does not extend to having no (or no proper) regard to the specific Orders sought by the Grandmother in the current proceeding. To do otherwise, among other things, would give preference to unbridled discretion over the procedural fairness that should be accorded to a party to know with adequate detail the case that is to be met.
But for one, discrete Order (in relation to the sending of cards to the children for birthdays and Christmas), my answer to the conundrum posed at the commencement of these reasons is “yes it can” (regarding the applicability of s.17A of the FCC Act to parenting cases), and further, “yes it should apply here.”
Moreover, using the “considerations” in Part VII of the FLA, in my view it is in the children’s best interests that the limited, indeed discrete, “contact regime” provided by the Grandmother sending birthday and Christmas cards to the children should occur but no other “parenting order” as specifically sought by the Grandmother should be made.[2] In my view, it is imperative, in accordance with s.60CA of the FLA regarding the best interests of the children, that they be, as far as possible, removed and protected from the acknowledged rancorous and bitter estrangement between the paternal Grandmother (and her partner), on the one hand, and their parents, on the other. If at some time in the future the children wish to make contact with the paternal Grandmother, the parents are to facilitate this; but this is not something that should be the subject of any specific Orders in the current Application.
[2] See s.64B FLA for what constitutes a “parenting order.”
Put another way, in a parenting matter, in my view it is imperative that any consideration of an Application pursuant to s.17A of the FCC Act must necessarily and relevantly be informed by the considerations set out in Part VII of the FLA.
Although the parents seek an Order for costs against the Grandmother, and (by way of observation only) perhaps in some respects not without some foundation, among other things, in the interests of bringing the litigation to an end sooner rather than later which can only benefit everyone (including the children), I propose making an Order that, in the absence of any further Application in relation to costs being made in 14 days, each party should bear their own costs.
Orders Sought by Applicant Paternal Grandmother
The Applicant Paternal Grandmother filed an Initiating Application on 3rd May 2017 which specified both Interim and Final Orders sought. The Interim Order sought was as follows:
1)That the parties be required to attend mediation.
The Final Orders sought were as follows:
1)That the Applicant spend time with her grandchildren, Y (born (omitted) 2005) (11 years) and X born (omitted) 2007 (9 years), as follows:
a) Each school term from after school Friday to 5pm Sunday on two occasions as agreed in writing on each occasion and if there is no agreement, on the third and seventh weekend of the term.
b) During school holidays twice a year as agreed in writing and if there is no agreement for no less than three days:
i) From 10am on the first Monday of the holidays until 5pm on the following Thursday during the June-July school holidays;
ii) From 10am on the second Monday of the new year during the December/January school holidays each year until 5pm on the following Thursday;
iii) On occasions close to each of the children’s birthdays and the Applicant’s birthday as agreed in writing on each occasion and if there is no agreement:
1.During the second weekend after each birthday from after school Friday until 5pm the following day;
c) At any other time as agreed.
Orders Sought by the Respondent Parents
The Respondent Parents attached an identical Minute of Interim Orders Sought, and a Minute of Final Orders Sought to their Response material filed on 3rd August 2017.
Those Orders Sought were as follows:
1) That the initiating application filed by the applicant paternal grandmother is summarily dismissed.
2) In the alternative to Order 1, that the initiating application filed be permanently stayed.
3) In the alternative to Orders 1 and 2, that pursuant to Section 118 of the Family Law Act 1975 (Cth) and/or Rule 13.10 of the Federal Circuit Court Rules, the Court summarily dismiss and/or stay the application filed by applicant paternal grandmother.
4) That as a further alternative and without concession, that the applicant paternal grandmother pay by way of security for costs to the solicitors for the respondent parents a sum of $40,000 within 7 days of the date of these Orders and such solicitors hold monies pending determination at first instance of the paternal grandmother’s application filed on 3 May 2017 and that the application be stayed pending compliance with this order.
5) That the applicant pay the respondent parents’ costs of and incidental to her application filed on 3 May 2017 on an indemnity basis.
The Applicant’s Evidence
For the purposes of the summary dismissal Application, I should be taken to consider the Applicant Grandmother’s evidence at its highest possible level, and being the evidence she would give at trial. Before doing so, I note the following generally agreed (or not disputed) facts concerning the Grandmother’s attempts to contact or make relevant arrangements to see the Grandchildren.
Following the death of her Husband, the Grandmother commenced a relationship in 2010 with Mr M. That relationship continues to the present time; the Grandmother and Mr M have executed a binding financial agreement in relation to their own financial affairs. Mr M has filed no affidavit in support of the Grandmother’s Application. A somewhat undetailed incident involving Mr M and the child Y at a Christmas family gathering a few years ago, as reported by the Respondent parents, seems to play some significance in the very strained relationship between the adults. The paternal Grandmother is rather dismissive of this incident. Given the relative importance/significance of Mr M as a person of historical and ongoing adverse interest from the parents’ perspective and his relationship with the Grandmother, it is quite unfortunate that no evidence from him was provided. Whilst I was not asked to draw any adverse inference from this lacuna in the Applicant’s evidence in accordance with the long-standing principle in Jones v Dunkel, formally I do not do so; I simply note that it was a not insignificant “gap” in the Applicant’s evidence.[3]
[3] Jones v Dunkel (1959) 101 CLR 298. There was brief discussion during the hearing by Counsel for both parties, and by the Court, regarding the lack of evidence from Mr M. It was suggested on behalf of the Grandmother that if the matter proceeded Mr M would then file material. This did not relevantly explain why he had not filed material in relation to the Applications before the Court. See Transcript (7th September 2017) pp.4 & 15.
The Grandmother has not spent any time with the Grandchildren since December 2015.
In (omitted) 2016, she sent a birthday card to Y (with a cheque for $50.00).
In February 2017, the Grandmother sent an email to her estranged son, Mr Birkett, seeking (among other things) to formalise some arrangements whereby she could spend time with the Grandchildren.
On 15th March 2017, the Grandmother’s lawyers wrote to the parents to propose, among other things, that there be mediation.
On 3rd May 2017, the Grandmother’s Initiating Application was filed.
All of these matters are set out in the Grandmother’s material. There is also an email from her to the parents, dated 21st April 2017 (Annexure A to the Father’s Affidavit), which curiously and unfortunately was not part of the material put before the Court by the Grandmother. It should have been provided by her. No explanation was given why this email was not attached to the Grandmother’s affidavit. It is as well to set it out in full, thus (emphasis added):
Dear Mr Birkett,
I would like to urge you to take up the offer of mediation with Ms D at (omitted) Mediation.
I am very serious about seeing the children. I want them to have every opportunity to grow up in an extended loving family. That is the best outcome for them.
I am not going to give up my quest to see this come about, and the sooner the better it is resolved the better. This is all about what is best for your children. If necessary the family court [sic] will determine that.
Please think very carefully about what you do and the options available to you.
With much love
Mum
At its highest, in my view, the attempts to make contact with the Grandchildren, via their parents or otherwise, have been really quite limited. While I do not doubt the Grandmother’s genuine desire to see them, nor do I doubt the importance for some degree of sensitivity (not least to respect the role and position of the parents), on their face, the attempts by the Grandmother (on her own evidence) to work out something regarding her time with the Grandchildren, prior to filing her Application, have been extremely modest, and over a relatively short period of time.
In more detail, the Grandmother’s evidence was as follows.
The Grandmother’s affidavit evidence is effectively in three parts: first, pars. 3(a) – (j) and 22 – 28 provide an overview of what the Grandmother says have been her attempts to make contact with the children and/ or the children’s parents. Significant parts of that summary have already been noted earlier in these reasons. The second part of the Grandmother’s affidavit evidence provides what she says is “background” which is an abbreviated form of what she says was her time with the children when they were growing up when all persons relevantly were living on the family property known as “(omitted)”.
In relation to par. 3 and its multiple parts, it is sufficient to note that the Grandmother’s evidence is quite generalised. Thus, for example, at subparagraph (e) the Grandmother refers to “for most of the children’s lives” she and the parents and the children are said to have lived “in our two separate houses at (omitted), a property of significant size south of (omitted).” The Grandmother says that during that time “I had regular and frequent time with Y and X at my house including overnight stays.” To state what should be obvious: generalised statements without relevant detail and particulars do not assist the Court in any relevant respect. This is especially so when matters are as contested as they are in the present litigation.
In sub-paragraphs (h) and (i), the Grandmother refers to various allegations made by the children’s parents that are said to have been directed to the Grandmother to highlight the fractured relationship between the adults. For my part these paragraphs (and others noted later) simply confirm the very high levels of animosity and difficulty between the adults, and only serve to make it even more difficult for the Court to consider placing the children in the middle of such ongoing and unabated family hostility whatever might be its history or causes.
Sub-paragraph (j) confirms the Orders sought by the Grandmother (which are further confirmed in pars. 31 and 32 of her affidavit); even on the Grandmother’s evidence, the Orders sought very significantly exceed anything (or any time) that she claims to have spent with the children in the course of their growing up and residence at (omitted).
Pars. 4 – 10 of the section of her affidavit entitled “Background” set out, again in really quite modest detail, among other things, how busy the children’s parents were and how relatively frequently, the Grandmother said, she assisted the parents “as often as I could” (par. 8). The Grandmother also claimed that she would baby-sit the children on a regular basis “since they were babies” and that she was involved in all aspects of their care including feeding, and bathing them, supervising them and other parent-like activities. As noted later in these reasons, the parents strongly deny the Grandmother’s level of involvement with the children, and the frequency, for which the Grandmother contends.
In par. 11, the Grandmother confirms her relationship with Mr M. She noted that they have spent time together in various places in New South Wales (e.g. (omitted), (omitted), Sydney, (omitted)) and travelling overseas. At the end of this paragraph, she stated (emphasis added): “as our relationship developed, I endeavoured to be with the children every fortnight.” Again by way of observation, given the number of localities at which the Grandmother says she spent regular time with Mr M, including his residence at (omitted) on the (omitted) of New South Wales, I take her contention about endeavouring to spend time with the children every fortnight to be somewhat more aspirational than to actually have occurred with the degree of regularity which she says occurred. Certainly, the Grandmother gives no evidence in relation to what the actual frequency was regarding her “engagement” with the children following the commencement of her relationship with Mr M (noting again too that the parents vehemently dispute the degree of involvement with the children as claimed by the Grandmother). And again I note that there is no affidavit from Mr M.
Pars. 12 – 14 outline again very briefly occasions when the Grandmother says the children spent time with her in 2014 and January 2015.
Pars. 15 and 16 outline the Grandmother’s portrayal of the affectionate and other natures of the children based on her having spent time with them. The timeframe for these assessments is again not specified but given the nature of the activities referred to, a reasonable inference is that the times refer to when the children were considerably younger than they are at the moment. This “inference” is confirmed by the parents in their affidavits.
Pars. 17 – 20 set out, again in quite modest detail, the financial plight and machinations between family members (including the Grandmother). Part of this financial and discordant family background involved (again with very little detail from the Grandmother) the engagement of a long- time family friend and prominent solicitor from Sydney who ultimately prepared what is described as “a promissory estoppel case against me [the Grandmother] to lodge in the Supreme Court.” The Court may reasonably infer that for the Grandmother and the parents, among others, to have been involved in contested proceedings in the Supreme Court (actual or imminent) again highlights the extremely strained and divided family relationships. The Grandmother stated: “the case was soon dropped, the sale proceeded and Mr Birkett and Ms A Birkett [the parents] purchased a house in (omitted)” (par. 20).
I have noted earlier that pars. 22 – 28 refer to various Annexures to the Grandmother’s affidavit which, she said, document her attempts to see the children. Those documents include the following matters:
1.Annexure D is a letter from the children’s Mother (Ms A Birkett) to the Grandmother dated 15th August 2016. That letter, in my view, is cordial but refers to the Mother’s concern about relationships not being able to be “repaired with money” and concludes with a paragraph which stated: “I feel pity for you [the Grandmother] that you have pushed these wonderful people out of your life and hope you can find the wisdom to accept responsibility for the consequences of your behaviour.”
2.Annexure E is an e-mail from the Grandmother to her son, Mr Birkett, dated 22nd February 2017 in which the Grandmother states on a number of occasions that she “would very much like to see Y and X; that she wants “to continue to be part of their lives”; and that she has “always enjoyed a very close relationship with them.” She then goes on to state that she did not want to cause any more distress to him given that he has chosen to have no contact with her and she says that she has done this “so I’ve given you some time to adjust to your new life.” She also says that the children are at a formative stage in their lives and thinks it is very important that it is not left too long before she re-establishes her relationship with them. She further states that the children benefit from contact with family members and that “this is acknowledged by the law.” She then suggests a number of times and places at which some meeting with the children might take place. Again to state the obvious: having stated to her son that she did not wish to cause any more distress, it is inevitable that the current litigation must continue to cause further distress, which the Father and Mother confirm in their affidavits.
3.Annexure G is an e-mail response from the parents to the Grandmother’s solicitor (who wrote a letter to them dated 15th March 2017 – Annexure F). In that e-mail, dated 20th March 2017, among other things, the parents state (emphasis added):
The children are sufficiently mature, to form their own views, based on their own observation and experience of the great unhappiness caused to us by Ms Birkett [the Grandmother]. Further, on the last occasion on which the children saw Ms Birkett, at our (omitted) home on Boxing Day, Mr M, Ms Birkett’s partner, was gratuitously offensive and hurtful to Y in the presence of us all. Ms Birkett did nothing to remedy or address the situation – she sat by.
We have told the children on several occasions, that if they want to contact Ms Birkett, they have only to ask. They have not done so.
We cannot see there is anything to mediate. Nor is there any point in engaging in any kind of communication with Ms Birkett. Over the past few years, Ms Birkett has demonstrated that she puts her own interests well above the interests of our family. She has rejected our attempts to reach an accord with her, and has demonstrated a selfish, unreasonable intransigence.”
In my view, it is significant that this evidence of the parents has not been relevantly challenged.
4.Annexure H of the Grandmother’s affidavit contains a series of e-mails between various family members, including Mr M. Amongst them is an e-mail from the Mother to a sister-in-law (Ms J) dated 30th December 2015 in which she refers to the anger and sadness of her Husband “for three years” which relates to various aspects of the property and other family discord; she also refers to the Christmas 2015 incident where it was stated that Mr M “was appallingly nasty to Y right in front of Ms Birkett on Boxing Day and she just sat there smiling.” In my view it is unnecessary to set out the relatively brief correspondence between Mr M and Ms A Birkett save for the fact that he says in further comments to her: “Yet again, your febrile imagination is the genesis of your angst.” (E-mail dated 31st December 2015). The animus between [relevant] adults in the family is patent.
It is of some significance, at par. 30 of her affidavit that the Grandmother stated: “Mr Birkett and Ms A Birkett are conscientious and devoted parents. In the event that the Court were to make the Orders I seek, I would follow their general parenting rules when the children are in my company, as I have done in the past.” Again, the parents refute the Grandmother’s relevant claims in this paragraph (and much else besides) regarding compliance with “general parenting rules”.
The Respondent Parents’ Evidence
The Father’s affidavit, filed 3rd August 2017, seeks to do two things: it provides further “background” to the estranged relationship between he and his Mother, which he says dates effectively from the death of his Father in February 2009. Secondly the affidavit seeks to respond summarily to the claims made by the Grandmother in her affidavit. Given the obvious pain, strain and difficulty (on all sides), I will seek simply to summarise relevant parts of the Father’s affidavit.
The Father says that he has no present relationship with his Mother nor does he wish to have one. He is opposed to the children spending any time with the Grandmother and equally so for the children to spend any time with the Grandmother’s partner, Mr M.
In pars. 8 – 17 the Father outlines the various aspects of the family farming enterprise, including the erection of a (omitted) farm, various family debts and the provision of significant sums of money to the Grandmother (approximately $220,000 per annum in (omitted) farm income) and various improvements to the family properties and stock which came about from his labours.
At par. 18 the Father contended that the Grandmother’s attitude towards him, his Wife and the children, changed significantly after she commenced the relationship with Mr M. Amongst other things, the Father said that the Grandmother was rarely involved with his family and her presence at (omitted) “was inconsistent.” He said that the Grandmother would divide her time between (omitted), her property at (omitted), another property at (omitted), and on frequent overseas holidays and other trips “within Australia.” All of this is consistent with the Grandmother’s evidence, but which also emphasises her frequent travel and sojourns elsewhere, which – by necessity – would limit her regular “availability” (historically at least since 2010 and the commencement of her relationship with Mr M) to spend regular time with the Grandchildren.
At par. 19 the Father said that the relationship with his Mother deteriorated further when the Grandmother made it plain that she would not abide by previously agreed arrangements for the transfer of various farming properties to the Father. At par. 20 the Father confirmed that, “finally, in March 2016 a Deed was signed to give effect to various agreements that were reached regarding the transfer of family property. Thereafter the parents and children moved to Canberra.”
The Father deposed that the children are now well settled in Canberra: he expressed his concern that the current litigation, which is directed to ensuring that the Grandmother spends time with the children, will risk undermining the parental role of the Respondent parents.
Par. 23 of the Father’s affidavit responds to almost every single paragraph of the Grandmother’s affidavit in which he rejects either out of hand, or heavily qualifies, the various contentions made by the Grandmother. It is sufficient to note for current purposes that in relation to the Grandmother’s contention that she spent time with the children on a fortnightly basis, this is refuted as not having occurred “at any time after the commencement of the relationship with Mr M” [in 2010]. The Father also says that the descriptions of the children and their relationship with the Grandmother all relate to periods prior to the children commencing school.
The Father also states (par. 23(n)) that he refutes the contention by the Grandmother that she shares the parenting philosophy of the parents. He deposed: “I believe that if the children were required to spend time with Ms Birkett and her partner, that she would take steps to undermine Ms A Birkett’s parental responsibility and seek to influence the children in a negative way.”
In relation to the Mother’s affidavit, also filed on 3rd August 2017, it is sufficient to note the following paragraph (par. 8 from that affidavit):
In 2015 and 2016 there were acrimonious negations to facilitate our disentanglement from the trust which held land containing our home, so that we could undertake a life away from (omitted). These negotiations were riven by demands from Ms Birkett that we considered unreasonable. The effect was that until we agreed to Ms Birkett’s demands we were locked into remaining at (omitted). We had almost no negotiating power and Ms Birkett took full advantage of her position. Ultimately we entered into a Deed that released us from that financial link. My feelings of betrayal are very deeply held. These are not only my own feelings of betrayal but also my profound sorrow for my Husband and what he has had to deal with through this period. I do not know when, or if, that hurt can ever be dissipated.
Submissions by the Applicant Paternal Grandmother
The Applicant’s written submissions filed on 5 September 2017 were as follows (citations omitted):
1) These submissions are filed in accordance with order 3 of the Orders made on 24 August 2017 and relate only to the discrete issue of the Respondents’ Application for Summary Dismissal.
2) The Federal Circuit Court Rules, like those governing other Courts, provide for summary dismissal in circumstances where there is no reasonable prospect of success, the proceedings are frivolous or vexatious, or an abuse of process.
3) The substantive Application before the court could not be said to lack bona fides. Two things are clear from the material filed:
a) that the Applicant comes to the court after exhausting other avenues to maintain her relationship with the children; and
b) that without the Court’s intervention, the children will not maintain their relationship with their paternal grandmother, or indeed other members of the paternal family.
4) The Respondents rely on the decision of Church v T Overton & Anor to say that because the Respondent parents are in an intact relationship, the Applicant has no reasonable prospect of success.
5) The law of summary dismissal is well settled. Spencer v Commonwealth reaffirmed the test from General Steel Industries v Commissioner for Railways that the cause of action must be “so obviously untenable that it cannot possibly succeed.”
6) Consequently, the Court must have a high degree of certainty about the ultimate outcome of the proceedings and must proceed with “exceptional caution” where the outcome will turn upon the resolution of disputed facts.
7) The Applicant asserts existing meaningful relationships with the children that have been recently stymied by a disagreement between the parties. The Respondent father minimises the currency of the relationship between his children and his mother. That dispute of facts cannot be resolved on an interim basis.
8) In addition, other than proceedings for divorce, separation is not required to ground the Court’s jurisdiction under the Family Law Act 1975. This is made explicit in relation to children in the objects and principles governing Part VII at s60B(2)(a).
9) Jurisdiction requires only an application from a person with the relevant interest in a child and an assessment of what order, if any, is in the best interest of the child. In this case, a consideration of the threshold question envisaged by Aldridge & Keaton is not required.
10) Even if Overton is considered in the absence of the subsequent comments of the Full Court, it is not fatal to the Applicant’s case. The circumstances pleaded in the present case fit wholly within his Honour’s reasoning of when the Court will interfere in the parenting decisions of intact families.
11) The Applicant’s case is not one where a preliminary assessment shows it to be “so obviously untenable that it cannot possibly succeed.” It is open for the Court to ultimately find that, in spite of the wishes of the parents, the continuation of the relationship between the children and their grandmother – and through her, their extended paternal family – is in their best interests.
Submissions by the Respondent Parents
The Respondent Parents’ written submissions filed on 5 September 2017 were as follows (citations omitted):
1) Pursuant to Orders made 24 August 2017 the matter has been listed to determine whether the application of the paternal grandmother be summarily dismissed.
2 The paternal grandmother has standing to bring an application (section 65C FLA). Standing does not connote that jurisdiction shall be exercised, or that the application has any reasonable prospect of success.
3) Section 17A of the Federal Circuit Court Act and Rule 13.10 of the Federal Circuit Court Rules are in similar terms. The respondents must establish that the proceedings have: no reasonable prospects of success; or are frivolous or vexations; or an abuse of process. They need not establish that the proceedings are hopeless or bound to fail.
4) The intention of the legislators when introducing the Family Law Act was to “buttress, rather than undermine, the stability of marriage”. The 2006 amendments were again directed to arrangements for children in circumstances where parents have separated. The parliamentary report on those amendments stated: “..in the light of the concept of the best interests of the child, [the Committee] believes it would be a very remote possibility that a court would order contact with a member of the extended family where contact was opposed by both parents.”
5) The nuclear family unit, particularly within marriage, is to be protected and preserved by the court in exercising jurisdiction – section 43 FLA. The Court is to consider the “impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings” – section 69ZN(3) FLA.
6) Proceedings should not be protracted (section 42 Federal Circuit Court Act) and the application of the rules should be directed to the “just, efficient and economical” resolution (Rule 1.03 Federal Circuit Court Rules) of the application before the Court. The Court is to “actively direct, control and manage the conduct of the proceedings” – section 69ZN(4) FLA.
7) The interaction of the provisions above impose an obligation on the paternal grandmother to satisfy the Court why it should exercise jurisdiction in relation to these children. On the Applicant’s own evidence the Respondents are “devoted and conscientious parents” (paragraph 30 Affidavit Ms Birkett).
8) The Respondents exercise parental responsibility for their children. Section 61B (for the purposes of the FLA) means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Any parenting order made in favour of the grandmother would operate as a fetter on the common law exercise of parental responsibility by the parents. The grandmother does not bring any, or any sufficient, evidence to the Court to demonstrate a failure in the exercise of parental responsibility by these parents. The grandmother’s evidence, it is submitted, is otherwise deficient and not capable of satisfying the Court that a parenting order (of any description) should be made.
Consideration & Disposition
In this section I deal firstly with relevant principle in relation to summary dismissal, then with relevant considerations under the FLA in relation to the best interests of the children.
It is important to set out, as summarily as possible, the terms of and relevant principle in relation to the operation of s.17A of the FCC Act.[4]
[4] Much of the summary of principle here has been taken from an earlier judgment of this Court: Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Anor (2011) 203 IR 411. It has, of course, been revised and updated.
In Three Rivers District Council v Governor and Company of the Bank of England (No.3) (“Three Rivers”),[5] which was cited with obvious approval by French CJ and Gummow J in their joint judgment in Spencer v Commonwealth,[6] Lord Hope said (internal citations omitted; emphasis added):
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
[5] [2003] 2 AC 1 at p.260-261 [95].
[6] (2010) 241 CLR 118 at pp.130 & 132 [21] & [26].
More summarily stated, Lord Hope may be taken, among other things, to distinguish between complex cases (e.g. as to matters of law, procedure and or facts) in contrast to necessary detail that is the warp and woof of litigation more generally. Indeed this is very much the case in family law which is, above all else, an area of law that invariably involves the Court sifting through shifting factual sands with very little reference to abstruse or complex questions of law.
The statutory basis upon which the Court exercises its power in relation to summary judgment is located in s.17A of the FCC Act. That section provides:[7]
[7] S.17A of the Federal Circuit of Australia Act 1999 relevantly mirrors s.31A of the Federal Court of Australia Act 1976.
(1) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court has apart from this section.
Rule 13.10 of this Court’s Rules also relevantly provides as follows:[8]
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
[8] This Rule also provides for the summary dismissal of matters where they are considered to be frivolous or vexatious (Rule 13.10(b)), or an abuse of process (Rule 13.10(c)).
In Spencer v Commonwealth, the plurality judgment of Hayne, Crennan, Kiefel and Bell JJ said, at [56]:
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
And at [58] – [60], the plurality commented (internal citations omitted):
[58] How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Subject to more recent guidance from the High Court and the Federal Court, it is convenient to note here the following cases which otherwise, respectfully, provide a convenient and helpful touchstone for the Application currently before the Court. Thus: White Industries Australia Ltd v Federal Commissioner of Taxation, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd.[9]
[9] White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (Lindgren J), Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Rares J), and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares & Gordon JJ). In the latter case, see especially the six principles set out by Gordon J at [123] – [134]. I am also conscious of Finkelstein J’s more recent helpful, and direct, discussion of Jefferson Ford in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41. See his “dialogue”, especially at [7] – [9], of the distinction between summary judgment and strike out applications. In a non-statutory context, see also the principles set out by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at [14]. A number of these cases have most recently been considered and applied by the Full Court of the Federal Court in C v Commonwealth of Australia [2015] FCAFC 113 at [56] – [59].
It is helpful to note also the summary of principle by Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd.[10] At [37], his Honour said:
[37] In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
o In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).
o The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
o As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
[10] [2009] FCA 499.
Sundberg J’s remarks have been endorsed in subsequent cases, some of which are post the High Court judgment in Spencer v Commonwealth (noted below). Thus: Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited, and Ryan J in Helal v McConnell Dowell Constructors (Aust) Pty Ltd.[11]
[11] Respectively, [2010] FCA 1298 at [22], and [2010] FCA 1462 at [12]. See also the comments of Bennett J in Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (CAN 126 049 214) and Others (No 2) [2010] FCA 919, and by Gleeson J in Geneva Laboratories Ltd v Nguyen (t/as Health Line Pharmacy Sydney (2015) 110 IPR 295.
Further, in Spencer v Commonwealth, French CJ and Gummow J said, at [24]: “The exercise of powers to summarily terminate proceedings must always be attended with caution.” Their Honours further instructed, at [25] – [26] (internal citations omitted):[12]
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
[12] See, too, the earlier comments of Gleeson CJ, Gummow, Hayne & Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at p.275 [46] (internal citations omitted): “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." These remarks from Batistatos were cited with approval in Spencer at pp.131-132 [24].
To the above, I simply note the Full Court’s brief observation in Davis v Insolvency and Trustee Service Australia,[13] at [18]: “… we do not read Spencer as requiring that summary relief be withheld where there are factual disputes about matters which are not material to the resolution of the litigation.”
[13] Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141.
More recently still, in Ekes v Commonwealth Bank of Australia, the New South Wales Court of Appeal said, at [88] (Bathurst CJ) (Beazley P at [176] and Emmett JA at [204] agreeing):[14]
[88] Although the principles are well known it is useful in the particular circumstances of the present case to refer to a summary of them by Emmett JA in New South Wales v Williams [2014] NSWCA 177 at [71], Macfarlan JA and Simpson J agreeing:
[71] The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners 78 CLR 62 at 91 ; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR 125 at 129–130 ; [1965] ALR 636 at 638–9 ; [1964] HCA 69; Commonwealth v Griffiths 70 NSWLR 268 ; [2007] NSWCA 370 at [11]–[12] and Spencer v Commonwealth 241 CLR 118 ; [2010] HCA 28 at [54]).
[14] Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665.
It cannot be disputed in the current matter that there is no question of law being disputed, or that it is likely to be developed or clarified. The Court is dealing here with an Application that involves, pre-eminently, the exercise of a discretion by the Court in relation to a relatively confined factual matrix, resulting in a discretionary judgment. While there is some dispute in relation to some basal facts, in my view, that dispute is of quite a narrow compass, namely, should the parents’ Application to strike out or summarily dismiss the Grandmother’s Application be granted, and if so, on what basis/bases should it do so? In determining those questions, the following matters, in my view, are salutary.
First, on the Grandmother’s evidence, her attempts to make relevant arrangements to spend time with the Grandchildren since 2015 have been, in my view, very modest. Even though her brief correspondence directly with the parents, and then via her solicitor, has been blunt and indeed forceful in the sense of flagging her determination (if not “quest”) to prosecute her “claim” to spend time with the Grandchildren, at the same time there does not seem to have been any particular urgency about spending such time. The impression given (it cannot be anything higher, and it is not said in any derogatory way) is that as important as spending time with the Grandchildren is, it is one of a range of matters that occupy the time of the Grandmother.
Secondly, given her frequent travel to places within Australia and overseas (to which she herself refers), it is difficult to see how the frequency of time the Grandmother seeks to spend with the Grandchildren has actually occurred as claimed or could reasonably and consistently occur in the future. The children (and their parents) need certainty and consistency in any arrangements. As earnest as the Grandmother clearly is in her Application, again given the generality of much of her evidence, and the lack of evidence from other relevant family parties (notably her partner Mr M), the Court could not (on the evidence in its current state) reasonably be satisfied that such certainty and consistency regarding such time would be forthcoming. As well, as already indicated, much of the Grandmother’s evidence regarding the children is either really very general and otherwise lacking in relevant detail, and or, as the parents contend (and as may be reasonably inferred from the Grandmother’s own evidence) related to times and places that are now quite some time ago when the children were considerably younger.
Moreover, the final Orders sought by the Grandmother seek a regime of time that significantly exceed the time the Grandmother asserts she saw the children, now some little time ago. Circumstances have, on the accounts of all of the parties, changed quite significantly since those now quite distant days.
Thirdly, as noted earlier in these reasons, the parents contended in correspondence with the Grandmother’s solicitor in March of this year that they would facilitate time between the children and their Grandmother if ever the children requested. They have not done so, according to the parents. These contentions have not been refuted or otherwise challenged by the Grandmother in any relevant respect.
Fourthly, and most importantly, my greatest concern is the fear of the children becoming directly embroiled in the long-running, bitter dispute between their parents, the Grandmother (and her partner) and (it would appear) other members of the Father’s family. Given the protective responsibilities of the Court towards the children (see for example s.60B(2)), my primary concern is to protect the children and to shield them from becoming embroiled in an otherwise long-running bitter family dispute. To become so embroiled would not, in my view, be in the children’s best interests in any relevant respect. There is no dispute about the children being happy and content in their parents’ care; nor is it disputed that, on the parents’ evidence, they have offered the children to contact/spend time with the Grandmother and they have not taken up that offer.
Fifthly, the majority judgment of Ryan and Austin JJ in Mankiewicz and Anor & Swallow and Anor, at [24], seems to allow or to accept that distress to a parent and or to the children arising from the litigation then pursued by the Grandparents in that case is a relevant consideration.[15] At [24], their Honours said:
… By ground 6, it is said that the primary judge erred in failing to take account into account that the second respondent, the children’s mother, “… was not of sound mind to refuse access of her children to the maternal great grandparents”. It would be unnecessarily distressing to the second respondent and, were they to become aware of it, the children, for us to repeat the submissions made by the appellants in support of this ground.”
[15] Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153.
If I have understood their Honours accurately, this would be further support for my grave concern regarding embroiling the children (and their parents) in ongoing litigation with the Grandmother.
Sixthly, the pursuit of litigation in the current circumstances indicates (I do not put it any higher) a lack of insight by the Grandmother. While she presumably feels it is a course of last resort, so to speak, the weightier consideration is that using the blunt instrument of the Court to force the Grandchildren to spend time with her is only likely to cause more rather than less angst to all involved. The basic and time-honoured adage of catching more flies with honey than with vinegar surely applies here. The vinegar of litigation can only sour further the intractably bitter dispute between the adults. It will be impossible to quarantine the children from such festering and caustic resentment and animosity. Unsurprisingly, such a view has been long-held. For example, in Mazur, after noting that the only disruptive aspect of the child’s life in that matter was “the anxiety of these proceedings and what has led up to them”, Woods J went on to say: “the disadvantages of a coercive situation would totally outweigh the prospect of any advantage such contact may offer.”[16] Respectfully, I accept and adopt his Honour’s observations.
[16] In the Marriage of Mazur (1976) 2 Fam LR 11,311 at 11,319 & 11,320 respectively.
Many of these same matters were set out at length in long-running proceedings before me, which were also the subject of an unsuccessful appeal, in the matter of Newton & Whiteman, which also involved a Grandmother pursuing time with her Granddaughter.[17] Ultimately, in that matter, the litigation (and other things) pushed the Granddaughter away from the Grandmother. I commend the parties but the Grandmother especially to read and to consider the fruitless and costly history of the litigation in that matter. Ultimately, the Granddaughter in those proceedings has “walked away” from her Grandmother because of the latter’s persistence and use of litigation to ensure that she spent time with her Granddaughter. Ultimately that course proved fruitless and indeed was a very costly (in every sense) exercise. The tool (or weapon) of litigation ultimately drove the Granddaughter away from her Grandmother who would not relent.
[17] Newton & Whiteman [2013] FCCA 754. On [unsuccessful] appeal, Whiteman & Newton [2013] FamCAFC 127; and Newton & Whiteman [No.2] [2014] FCCA 180.
In the circumstances, in my view it is unnecessary to consider or comment on any of the other cases, such as Church v Overton, Valentine v Lacerra, and or Aldridge v Keaton that were the subject of brief comment or reference in submissions[18] The latter two Full Court decisions in particular emphasise the importance in any parenting matter that it is the best interests of the children that remains the paramount consideration.
[18] Church v Overton (2009) 40 Fam LR 357; Valentine v Lacerra (2014) 49 Fam LR 255; Aldridge v Keaton (2010) 42 Fam LR 369.
Finally, for completeness, in my view the Grandmother’s final Orders sought (as earlier noted) are so significantly in excess of what could conceivably be considered to be in the children’s best interests that they should properly be considered to be “aspirational”. As such, and giving every allowance to the almost usual way in which family law Orders are crafted/drafted, which is to say, something along the lines of making an “ambit claim”, the Grandmother’s final Orders sought would, in my view, be so disruptive of the children’s lives in Canberra (not to mention that of their parents) as to not be in the best interests of the children. Such a view about such glaringly untenable Orders sought is also relevant to the Court’s consideration of s.17A of the FCC Act.
Conclusion
For the reasons given, the risks of embroiling the children in both this litigation and especially the long-standing bitter, virulent and splenetic family dispute between their parents and the paternal Grandmother, militate against anything except the most basic order for the Grandmother to send the children birthday and Christmas cards. Otherwise, pursuant to s.17A of the FCC Act, the Grandmother’s Application, filed 3rd May 2017, should be dismissed. Such Orders, to bring the litigation to an end, in my view are patently in the children’s best interests. Even to force them to attend a meeting with a family consultant sometime in the future will necessarily prolong and embroil them (and the adults) in the rancorous family contest. That is not in their best interests in any relevant respect.
Moreover, given that the parents have confirmed that if the children ask to see the Grandmother, they will facilitate this course (which statements have not been refuted by the Grandmother and therefore I accept them), one can only hope that in time with the pressure of litigation at least removed the children may seek to spend time with the Grandmother whenever she is available and not otherwise travelling to various parts of Australia or overseas.
Although the parents have sought an Order for costs (including on an indemnity basis), in the current circumstances, in my view, the better course is for there to be a self-executing Order for each party to pay their own costs absent any Application in relation to costs being filed within fourteen (14) days.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 9th November 2017
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