Bowles and Anor and Post and Anor - [2020] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWLES & ANOR & POST & ANOR

[2020] FCCA 3300

Catchwords:
FAMILY LAW – Parenting – grandparents – grandparents seeking to spend time with grandchildren – mother and father in loving relationship and present no risk to children – grandparents seeking particulars of why they were not permitted to care for children – grandparents seeking to be given first preference to care for grandchildren – summary dismissal application by parents – whether grandparents have a reasonably arguable case – summary dismissal granted – grandparents given leave to file an amended application.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 45A, 60CA, 60CC

Federal Circuit Court of Australia Act 1999 (Cth), s.17A.
Federal Circuit Court Rules 2001 (Cth), r.13.10(a).
Federal Court of Australia Act 1976 (Cth), s.31A(2).

Cases cited:

Beck v Beck (2004) FLC 93-181

Birkett v Birkett & Anor [2017] FCCA 2503
Bright & Bright v Bright & Mackley (1995) FLC 92-570
Church v M Overton and Anor [2008] FamCA 953

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Lindon v Commonwealth (No.2) (1996) 70 ALJR 541
Spencer v Commonwealth (2010) 241 CLR 118
SPS v PLS [2008] FamCAFC 16

First Applicant:

Mr A Bowles

Second Applicant:

Ms B Bowles

First Respondent:

Ms Post

Second Respondent:

Mr Bowles

File Number:

MLC 7782 of 2020

Judgment of:

Judge Blake

Hearing date:

21 October 2020

Date of Last Submission:

21 October 2020

Delivered at:

Melbourne

Delivered on:

4 December 2020

REPRESENTATION

Counsel for the Applicants:

Ms Goldthorp

Solicitors for the Applicants:

Pearsons Lawyers Pty Ltd

Counsel for the Respondents:

Mr Glezakos

Solicitors for the Respondents:

Gadens Lawyers

ORDERS

The Application filed on 17 July 2020 be dismissed.
The Applicants have leave to file an Amended Application within 28 days of the date of these orders.
The Applicants pay to the Respondents the costs of and incidental to the Application within 28 days of the date of this order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELOURNE

MLC 7782 of 2020

MR A BOWLES

First Applicant

MS B BOWLES

Second Applicant

And

MS POST

First Respondent

MR BOWLES

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before the Court in the duty list. It is an application by the paternal grandparents (‘Applicants’). They seek final orders, among other things, to enable them to spend time with their grandchildren. The interim orders sought by the Applicants include orders that the parties undertake therapeutic counselling with a counsellor.
The application is opposed by the parents (‘Respondents’). The Respondents seek that the application be summarily dismissed.
For the reasons that follow, I have decided to summarily dismiss the application, but grant leave to the Applicants to file an Amended Application within 28 days of the date of these orders.

Background

The Respondents married…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bowles and Anor and Post and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 3300
Decision Date: 4 December 2020

CaseChat Overview and Summary

In the matter of *Bowles and Anor and Post and Anor*, heard before Judge Blake, the applicants, who were grandparents, sought orders for time with their grandchildren. The respondents, the parents of the children, were in a loving relationship and posed no risk to the children. The grandparents sought particulars regarding why they were not permitted to care for the children and requested to be given first preference for such care. The parents applied for summary dismissal of the grandparents' application.

The central legal issue before the court was whether the grandparents had a reasonably arguable case for the orders they sought, such that the matter should proceed to a full hearing, or whether the application should be summarily dismissed. This involved an assessment of the prospects of the grandparents establishing a legal basis for their claims, particularly in circumstances where the parents were deemed to be safe and capable caregivers.

Judge Blake determined that the grandparents' initial application lacked a reasonably arguable case for the relief sought, leading to the summary dismissal of their application. However, the court granted the grandparents leave to file an amended application within 28 days, indicating that a properly framed application might have merit. The applicants were also ordered to pay the respondents' costs incidental to the dismissed application within 28 days.

Orders

Orders of the court

The Application filed on 17 July 2020 be dismissed.

The Applicants have leave to file an Amended Application within 28 days of the date of these orders.

The Applicants pay to the Respondents the costs of and incidental to the Application within 28 days of the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.