Bowles and Anor and Post and Anor
[2020] FCCA 3300
•4 December 2020
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. |
| Cases cited: Beck v Beck (2004) FLC 93-181 Birkett v Birkett & Anor [2017] FCCA 2503 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Lindon v Commonwealth (No.2) (1996) 70 ALJR 541 |
| 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 in 2016. Both are employed in professional roles. They are happily married.
The Respondents have two children; X born 2017 (‘X’) and Y born 2019 (‘Y’).
The Applicants are the parents of the Second Respondent (‘Father’).
X and Y were both born with a medical condition. X’s condition has greatly impacted his hearing and speech. X is prone to hearing loss and requires careful attention to avoid contagious illnesses. He is prone to ear infections and has lost his hearing twice and has since been fitted with a hearing aid. He uses AUSLAN to communicate. It is too soon to tell what the impact of Y’s condition is upon him.
Until November 2018, the Applicants were spending regular time with X.
Matters took a turn for the worse on 15 November 2018. On that day, the Father informed the Applicants that it was the Respondents’ intention that X be cared for by a combination of the maternal grandparents, and the engagement of a nanny when the Respondents are at work. The Applicants were shocked and upset at this news.
On 17 November 2018, the Applicants met with the Respondents to try to discuss matters. The First Applicant (‘Grandfather’) was very upset, broke down in tears and raised his voice in the presence of X.
Following the events above, the Respondents proposed family counselling. That offer was rejected by the Applicants.
The Applicants have not spent time with X since July 2019. They have never met Y.
The Applicants acknowledge that the Second Respondent (‘Mother’) makes their son, the Father, happy. They also acknowledge that the Respondents are ‘caring and devoted parents to X and Y’, that ‘Mr Bowles is a wonderful father’ and ‘believe Ms Post is a wonderful mother’.
The Applicants say that they have commenced these proceedings in order to enable them to have a relationship with their grandchildren. The Respondents say that the relationship between them and the Applicants has broken down, that their health has suffered, and that it is not in the children’s best interests to see their grandparents in circumstances where doing so will come at the expense of the parents’ health and happiness.
The Application for summary dismissal
Relevant Principles
The Respondents seek that the Application be summarily dismissed.
Section 17A of the Federal Circuit Court of Australia Act 1999 (‘Act’) deals with summary judgment. Sub-s.17A(5) of that Act, however, provides that section 17A does not apply if the Court is exercising jurisdiction under the Family Law Act 1975 (‘FLA’).
Section 45A of the FLA deals with summary decrees. Insofar as the present matter is concerned, sub-ss.45A(2) and (3) provide as follows:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Rule 13.10(a) of the Federal Circuit Court Rules 2001 (‘Rules’) relevantly provides that a proceeding may be dismissed if the Court is satisfied that ‘the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim’.
The High Court of Australia has noted that the power to order summary judgment must be exercised with ‘exceptional caution’: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
In Lindon v Commonwealth (No.2) (1996) 70 ALJR 541 at 544-54, Kirby J set out the following principles governing summary dismissal applications:
‘1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief… is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. … If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
6. The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.’
(Footnotes omitted)
In Spencer v Commonwealth (2010) 241 CLR 118, French CJ and Gummow J, in considering s.31A(2) of the Federal Court of Australia Act 1976 and the power of the Federal Court to order summary dismissal, stated that:
‘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…’
In Beck v Beck (2004) FLC 93-181, a Full Court of the Family Court stated, inter alia, that applications for summary dismissal must be determined on the basis only of the material put forward by the respondent (in this case, the paternal grandparents), and an applicant for summary dismissal has no right to adduce any evidence at a summary hearing to contradict the evidence of the principal applicants in the proceeding.
It is important to observe, however that the position above is qualified in a proceeding involving parenting orders. In SPS v PLS [2008] FamCAFC 16, Warnick J, in considering the application of the rule in Rice v Asplund, observed that while an application to dismiss an application for parenting orders does not neatly fit within the definition of parenting order (as it then was), because it is an application that involves a decision of whether or not the Court should make a parenting order, s.60CA of the FLA is applied and the best interests of the child remain paramount. The importance of considering the best interests principle in the context of a summary dismissal application is also a matter that has been noted in this Court: Birkett v Birkett & Anor [2017] FCCA 2503. The best interest considerations are set out in s.60CC of the FLA.
Accordingly, while the Court must determine the application for summary dismissal on the basis of the material only put forward by the Applicants, the Court is to have regard to the parties’ affidavits in an assessment of the best interest considerations of the child. That assessment involves weighing the probabilities of the parties’ respective claims and balancing questions of risk.
In Church v M Overton and Anor [2008] FamCA 953 (‘Church’), in the course of a final hearing, Benjamin J considered the statutory scheme under the FLA insofar as it extended to grandparents. Benjamin J traced the provisions of the FLA and made a number of important observations in relation to the FLA and the role of grandparents. Benjamin J observed that (at paragraphs [34] and [39]):
‘34. On the literal reading of s 60B [of the FLA] if the particular grandparent is not significant to the child’s care, welfare and development it seems the child has no statutorily enshrined right to spend time with them on a regular basis. Given the paramountcy of the child's best interests, however, regular time might be ordered. Reading the totality of the amendments in the context of the explanatory memorandum it is clear that the legislature was endeavouring to acknowledge the importance of grandparents and other relatives in the lives of children.
…
39. The [FLA] supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child's best interests. However, any determination of the best interests of a child or children should be informed by the family dynamics between the children's parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
Additionally and significantly however, in a case that was concerned expressly with the amount of contact a grandfather should have with his grandchildren, Benjamin J looked at the rights of parents to make decisions about their children under the FLA. Benjamin J:
a)at paragraph [43] observed that:
‘Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.’
b)at paragraph [44] stated “…the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference;” and
c)at paragraph [57] stated that “[t]he law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child.”
Finally at paragraphs [59] to [60], Benjamin J stated:
‘59. If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child's best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child's best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.
60. That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.’
The statements of principle by Benjamin J outlined above are statements from a superior court judge. Accordingly, they are principles I have had regard to in considering this matter, including the application for summary dismissal.
Consideration
The children currently have a meaningful relationship with their parents – no contention or evidence was advanced to the contrary. This is also not a case where, on the Applicants’ material, there is a need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse neglect or family violence. It seems clear there was an incident that occurred in November 2018 where the Grandfather raised his voice to the Respondents in the presence of X. It is a one-off incident that occurred in a situation where the Grandfather was attempting to understand the decision made by the Respondents in relation to the care of their children. The incident is not one which, of itself, would result in the Court making an order that the children not have contact with the Applicants.
This is a case which raises squarely the matters identified by Benjamin J in Church; that is, balancing the competing considerations. Those considerations are, first, the legislative intent that interested grandparents should be specifically considered when determining what orders are in the best interests of the child, and second, the entitlement of parents to parent their children.
The Respondents are, to use the words of the Applicants, ‘caring’, ‘devoted’ and ‘wonderful’. There is no suggestion or evidence that the Respondents are incapable of appropriately exercising parental responsibility.
The evidence of the Applicants is that the fracture in this family occurred when the Respondents informed them that the Mother was returning to work, and that the children would be cared for by a combination of an employed babysitter, and the Mother’s parents. I questioned the Applicants’ counsel about whether there was not some other cause or build up to this event. I was told there was not. I therefore accept for present purposes, that it was this event that caused the fracture.
I place some significance on the above in the context of the present application. The Applicants’ pursuit of this Application has its genesis in a common decision made every day by parents; who will care for our child. On any view, that is a decision the Respondents were entitled to make as otherwise responsible parents.
On the Applicants’ own evidence, at least the following then occurred. First, they were upset. Second, they sought reasons for the Respondents’ decision. In their affidavit material, the Applicants place much emphasis on the fact that the Respondents have not provided ‘particulars’ or reasons for their decision.
While the search by the Applicants for ‘particulars’ is understandable at a human level, the pursuit of the Respondents for reasons for their decision is misconceived. The Respondents, as responsible parents, are not required to justify their decision to the Applicants or anyone else. There is certainly nothing in the FLA that requires them to do so. I doubt any Court would require them to provide reasons. The Applicants need to accept that fact.
That the Applicants have difficulty accepting a decision that the Respondents are entitled to make has then manifested itself in other ways in this Application. On more than one occasion, in their material, the Applicants say that they wish to provide ‘practical assistance’ to the Respondents. That the Applicants bring this Application seeking to provide ‘practical assistance’ is demonstrative of the following. First, it ignores the entitlement of these parents to parent their children and seeks to usurp their role as responsible, joint, decision makers. It is plain as day on the Applicants’ own evidence that their practical assistance is not wanted. Second, it is demonstrative of a lack of insight by the Applicants into the dynamics of the family and the Respondents’ ability to care for and make decision about the care of their children.
The Respondents have made a decision that they do not wish the Applicants to be involved in any babysitting role. This was communicated clearly to the Applicants in November 2018. It is also apparent in the way in which the Respondents arranged for X to spend time with them. Yet, despite this, the Applicants have persisted with this Application because of a desire by them to provide ‘practical assistance’. By doing so, they apparently seek to place their own interests above others.
I have noted earlier the comments of Benjamin J in Church that it is not the role of the Court to peer over the shoulders of functional parents and second guess decisions they make. Yet, this is what the Applicants would have the Court do. There is no better example than the orders sought by the Applicants in this proceeding that they be given ‘first preference’ to care for the children in the event that the Respondents are unable to care for them. Granting such an order would diminish significantly the ability of these parents to care for their children in the manner that they see fit to do so, without good reason. There is nothing in the material upon which would support the Court making such an order and it is difficult to envisage a circumstance where the Court would make such an order in this case.
A relevant consideration under the Act is the nature of the relationship that a child has with, among others, his or her grandparents. Benjamin J in Church identified the particular role grandparents can play and the prominence given to them in the FLA. I respectfully adopt Benjamin J’s comments. The Family Court of Australia has also observed that it is very important for children to understand that they are part of a wider family unit: Bright & Bright v Bright & Mackley (1995) FLC 92-570.
There are several aspects of the Applicants’ relationship with their grandchildren that emerge from the evidence. First, it is the Applicants’ own evidence that they spent time with X, on average, once or twice per week up until July 2019. Significantly, it is also their evidence that the time was spent ‘usually at Mr Bowles and Ms Post’s residence, and in the presence of either or both of them, save for two occasions’. The reason why this occurred appears to be in dispute, and I have not placed any weight on the competing reasons. What is significant, however, is that on the Applicants’ own case, they were not spending large amounts of time with X alone. The relationship, such as it was, was always one where (save for the odd occasion) X’s parents were present. Self-evidently, these were parents who, on the Applicants’ own evidence, chose to be with X when he was in the presence of the Applicants.
None of this should be taken to detract from the warmth of the relationship that X apparently enjoyed with the Applicants. In December 2018, the Respondents replied to an email from the Applicants in which they stated that ‘we want to ensure that you know how much X loves being around both of you’. I accept that X enjoyed the presence of his grandparents. A critical component of that relationship, however, was that one of his parents was usually present.
The second matter to observe is that in the period from November 2018 when the relationship between the Applicants and the Respondents had broken down, Y was born. The Applicants, on their own evidence, have not spent time with Y since his birth. There is no existing, meaningful relationship with Y.
The Applicants say that they wish to ensure that the children gain an understanding of their family history, and have a sense of belonging. The desirability of children having a relationship with their grandparents is, as I have indicated above, something that is well understood. I accept it as a relevant consideration. I also accept for the purposes of the present application, that the Applicants may be able to bring an understanding or perspective to the family history that may be different from, or fuller than, the understanding or perspective brought by the Respondents.
Having considered the above matters, there is then a question as to what the Court could reasonably do in this situation, and what orders it could reasonably make. The Applicants sought in their Initiating Application that a s.11F conference be conducted. By the time the matter came before me, the Applicants also sought an order for therapeutic counselling. In order to consider these matters, it is necessary to briefly consider the history of the matter and in particular, prior attempts to fix the relationships between the Applicants and the Respondents.
The Applicants’ own evidence is that the Respondents offered to undergo family therapy at the time the relationship fractured in November 2018. The Applicants evidence is that they ‘did not agree to this’ as they did not believe that therapy would change the position.
The Applicants then depose that in September 2019, some 10 months later, the Father arranged for family therapy to take place at Family Therapist C. The Grandfather deposes that he was informed by Family Therapist C that the Mother would not be involved in the therapy, and that it should be delayed for four months. The Grandfather’s evidence is that he ‘did not want to wait four months to commence the process’. Accordingly, the therapy from Family Therapist C never commenced. The Grandfather then elected to pursue his attempts to fix the relationships through Relationships Australia.
I pause at this point to make the following observations. First, the Applicants rejected an offer of therapy in November 2018 because it would not ‘change the position’. It seems therapy was not being sought by the Applicants to repair the relationship, but rather to secure from the Respondents a change in their choice of care arrangements. Second, by not pursuing the therapy offered by the Respondents at that time, the Applicants effectively elected to permit the relationship to founder, which it has. Third, the offer by the Respondents to engage in therapy at Family Therapist C was refused, inter alia, because the Grandfather did not want to wait four months. That is startling for several reasons. The relationship had then been fractured for ten months, and in that context, four months is not a long time. Moreover, the wait is explainable by the following; the Mother was due to give birth to Y in the second half of the year.
As I have noted, the Applicants having decided not to accept the position indicated by Family Therapist C, pursued mediation with Relationships Australia. That attempt was ultimately not successful, with Relationships Australia advising the Applicant grandfather that ‘mediation was inappropriate in the circumstances of the matter and would not achieve its intended objective’. I regard that as a matter of some significance. A third party body that specifically deals with repairing relationships has, apparently after interviewing the parties, formed the view that mediation will not achieve the intended objective.
The position then may be summarised as follows. The Applicants ignored two offers from the Respondents to resolve matters. The situation has deteriorated throughout that time. Relationships Australia have indicated mediation is not appropriate. The Respondents now do not wish to engage in any therapy or mediation. The Applicants, however, having had the freedom to choose whether to engage in resolution processes and elected not to do so, come to this Court asking it to compel the Respondents to engage in a therapeutic process or a s.11F conference. Furthermore, they do so in circumstances where they singularly fail to articulate why they consider therapy would work now, when they thought it would not be of assistance in at earlier times.
I return then to the question of the interim orders sought by the Applicants and what might be achieved were I to make such orders. On one view, there is always a chance that any attempt at resolution, therapeutic or otherwise, might be successful. Is that prospect enough to warrant the order? In my view, it is not enough. The Respondents, having offered earlier to attempt to reconcile with professional assistance, are now implacably opposed to it. I have some difficulty requiring the Respondents, who are capable and loving parents, to invest time in a resolution process by Court order in circumstances where the Applicants have been free themselves to choose whether or not they participate in any alternative resolution process.
The Respondents are clearly educated, competent, caring and of no risk to the children. There is little utility in the circumstances of this case of forcing individuals such as the Respondents to undertake to therapy. This is particularly the case where the cause of the dispute is the choice made by the Respondents as to who is to care for their children (a choice they are entitled to make), and the Applicants by the orders sought, seek to usurp the role of the parents to make that choice. Requiring these parents to undergo therapy or counselling in the circumstances would, it seem, expose them to stress and uncertainty while caring for two children with particular needs. That is not, in my view, in the children’s best interests.
There is then the evidence of the Respondents in relation to the impact these proceedings, and any orders that might be made in favour of the Applicants, might have on the health of the Respondents. The Mother says that the Father suffers from headaches, migraines, has difficulty sleeping, and is enduring the stress of Court proceedings. This account is supported by the Father, who also says that his health and outlook has been better when he is not exposed to the behaviour of the Applicants. While there is not medical evidence to support these matters, it is nevertheless important to take them into account. These are functional, competent parents. Acceding to the Applicants’ orders would mean that there is a risk of the Father’s health deteriorating. That may in turn jeopardise his capacity to care for two small children who each have unique needs. It would be an adverse outcome if the Father’s capacity to care for the children, who each have their particular needs, was compromised because of the pursuit of these proceedings, which as I will explain below, has no reasonable prospect of securing the final relief claimed.
In my view, given everything I have said above, it is not in the children’s best interest to require the parties to attend family therapy. These parents are entitled to make the decision they made concerning care arrangements for their children. The Applicants have not indicated why they think therapy will work now, when they were of the view it would not work earlier. The Applicants’ evidence, and the breadth of the orders they seek, do not seek to merely have contact with their grandchildren. They seek to undermine or usurp the position of otherwise competent parents. Therapy will not resolve the fundamental issue at play; the parent’s right to make their decision, and the Applicants’ inability to respect and accept that decision.
To the extent it is necessary to expressly say so, I also have doubts about the value of a s.11F report in this case. It is a condensed report, not suited to the dynamics of this family or the issue that has caused the conflict. Further, one of its most valuable features (seeking the views of the children), would not be present in this case given the age of the children.
The final orders sought in this matter (and indeed the interim orders sought in the Initiating Application, acknowledging that some of the interim orders sought were not pressed in the hearing before me) include orders to the effect that:
a)the children spend time with the Applicants, that ultimately builds to an amount five hours each alternate weekend;
b)the Applicants be given ‘first preference’ to care for the children in the event that the Respondents are unable to care for them; and
c)the Applicants be immediately informed of any serious illness or injury sustained by the children.
The relief sought above is sought in circumstances where the marriage of the Respondents is a happy one, no contention is advanced that the children are not properly cared for and where there is no risk to the children.
In the circumstances, the relief sought which I have summarised above is, on any view, extraordinary. Ultimately making orders that children with obvious health issues who are otherwise well cared for in a supportive family unit be required to spend five hours every alternate weekend with the Applicants is, in my view, an overreach. No allowance is made in that proposal that seriously countenances time for these children to spend with each other, or with their parents, on the weekend. No allowance is made for the children to engage in the usual social and sporting activities that children engage in during the weeks.
The idea that a particular set of grandparents should be given ‘first preference’ to care for children that are otherwise well cared for, over and above the wishes of their parents, is extremely far-fetched. As I have noted above, such an order would interfere with the rights of these parents to, for example, select a carer for their children, should they need to, because they are required to work, and indeed would interfere with their rights as responsible parents to enrol their children in early childhood education should they wish to do so. The Court would be placing itself in the position of diminishing an exercise of parental responsibility without any justifiable basis for doing so.
When these matters are considered, in my view, the Applicants do not have any reasonable prospect of successfully obtaining the final relief sought. Further, it is difficult to see how the interim relief they seek will resolve matters, or how it is in the children’s best interests. For all of the above reasons, I will make an order summarily dismissing the Application.
Leave to file an Amended Application
There is a question as to whether I should grant the Applicants leave to file an Amended Application. It is a serious thing, on a first return, to dismiss a claim and not give an applicant an opportunity to file an Amended Application or claim. In my view, the Applicants should be given an opportunity, should they wish, to file an Amended Application.
The Applicants should carefully consider these reasons prior to filing any Amended Application. They should read the comments of Benjamin J in Church regarding the role and rights of parents. It is highly unlikely that litigation is going to result in them achieving anything like what they aspired to in the present application. Furthermore, litigation is only likely to continue to cause further division within this family and produce a result where the Applicants are further estranged from the Respondents. In the long run, that is not likely to be of any benefit to the children or the Applicants. The Applicants, therefore, should seriously consider their position and whether it is sensible to continue with any form of litigation, and the effect such litigation will have on their children and grandchildren.
Costs
The Respondents seek costs. In my view, it is just to order costs in this case. The Applicants have been wholly unsuccessful in their present application. The Respondents ought not to have to bear their costs, not only because of the Applicants’ complete lack of success, but also because the Respondents made multiple attempts, including very early in the dispute, to resolve matters, which were not taken up by the Applicants.
I will therefore make an order that the Applicants pay the Respondents’ costs of and incidental to the application.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 4 December 2020
6
5