Gaffney and Erikson and Anor - [2011] FMCAfam 1177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAFFNEY & ERIKSON and ANOR

[2011] FMCAfam 1177

FAMILY LAW – Parenting proceedings – applicant maternal grandfather – summary dismissal – no reasonable prospects of success – vexatious proceedings.

Family Law Act 1975, ss.118, 65C, 60CC, 64B, 64C
Federal Magistrates Act 1999, s.17A
Federal Court of Australia Act1976, s.31A
Family Law Amendment (Shared Parental Responsibility) Act2006, s.60B
Supreme Court Act1970, s.84

Vivid Entertainment LLC v Digital Cinema Australia Pty Ltd [2007] FMCA 157
White Industries Australia v Assistant Commissioner ofTaxation [2007] FCA 511
Jacobs v Vale [2008] FMCAfam 641
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60
Church v T Overton & Anor [2008] FamCA 965
Sampson & Jacks [2008] FamCA 176
Bemert & Swallow [2009] FamCA 5

Applicant:

MR GAFFNEY

First Respondent:

MS ERIKSON

Second Respondent:

MR ERIKSON

File Number:

NCC 1181 of 2011

Judgment of:

Foster FM

Hearing date:

21 September 2011

Date of Last Submission:

21 September 2011

Delivered at:

Newcastle

Delivered on:

4 November 2011

REPRESENTATION

Solicitor for the Applicant:

Self Represented

Counsel for the Respondents:

Mr Cummings

Solicitors for the Respondents:

Uther Webster & Evans

ORDERS

That the maternal grandfather’s application filed on the 12 May 2011 be dismissed.
That the applicant maternal grandfather Mr Gaffney be restrained pursuant to s.118 of the Family Law Act 1975 (“the Act”) from instituting proceedings under the Act with respect to the First Respondent, Ms Erikson, the Second Respondent, Mr Erikson and any children of the First and Second Respondents without leave of a court having jurisdiction under the Act.
That otherwise all applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1181 of 2011

MR GAFFNEY

Applicant

And

MS ERIKSON

First Respondent

MR ERIKSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

These parenting proceedings in relation to the child [X] born [in] 2009. The child is now only 22 months old.

Maternal Grandfathers Application:

The applicant is the maternal grandfather of the child and the respondents the child's parents.
By application filed on the 12th of May 2011 the applicant sought final orders in relation to the child as follows;
a)that to the child [X] born [in] 2009 live with the mother and father and spend time with the applicant maternal grandfather of not less than two blocks per week of not less than two hours per block as agreed between the parties and in default of agreement each Tuesday and Thursday from 2 p.m. to 4 p.m.
b)that to facilitate spending time pursuant to Order 1 herein changeover will be at the McDonald's Family Restaurant at the [omitted] railway station.
In the same application of the maternal grandfather sought interim orders in terms identical to the final orders.

Respondent Mother and Respondent Father’s Response:

In their Response filed on the 19th of August 2011 the respondents sought the following final orders:
a)that the application be dismissed.
b)that the applicant be restrained from contacting in any way the respondents or the child or children all of their marriage other than through the respondents legal representatives.
c)that the applicant to be restrained from contacting the second respondent's workplace or employers.
d)that to the applicant be restrained pursuant to section 118 of the Family Law Act (“the Act’) from instituting proceedings under the Act, with respect to the first and second respondent's and any children of the first and second respondents, without leave of a court having jurisdiction under the Act.
e)That the applicant to pay the respondents costs of and incidental to these proceedings.
The respondents sought interim orders in identical terms to the orders set out above.

Affidavits Relied on:

In support of the application the applicant relied on the following affidavits:
a)affidavit of the applicant filed on the 12th of May 2011.
b)affidavit of the applicant filed on the 8^th of September 2011.
c)further affidavit of the applicant filed on the 8^th of September 2011.
d)affidavit of Ms C filed on the 12th of September 2011.
In support of the response the respondents relied on the following affidavits:
a)affidavit of Ms Erikson filed on the 19th of August 2011.
b)affidavit of Mr Erikson filed on the 19th of August 2011.
c)affidavit of Ms T filed on the 2^nd of September 2011.

Background

The first respondent mother was born [in] 1980 and is 31 years of age. She does not work and is a full time mother to the child. The second respondent father is 34 years of age and an [omitted] by occupation.
The respondents were married [in] 2008.
The child of the subject of these proceedings is the only child of the marriage.
The respondent mother asserts that her parents separated when she was about 18 months old. Her memory is of being raised in her mother's full-time care, with a necessarily close and supportive relationship from her maternal grandparents. The respondent’s mother suffered from alcoholism and drug dependency.
Her recollection is of a sporadic and irregular relationship with the applicant until about 1998 and thereafter virtually no relationship with the applicant during the period from 1998 to 2003.
In 2001 the respondent mother met the respondent father and their relationship developed from that time.
In late 2003 following a serious injury to her mother the respondent mother contacted the applicant to advise him of the incident and that her mother was in [omitted] Hospital. The applicant attended at the hospital and the respondent mother asserts that her brief contact with the applicant at that time was less than cordial causing her significant distress.
The respondent mother thereafter had no contact with the applicant until 2006 at which time the applicant telephoned her and she accepted the call. Thereafter there was some contact between the applicant and the respondent mother by telephone and occasionally in person.
In September 2008 the applicant attended the respondent mother's wedding although he took no formal part in the ceremony.
The respondent mother asserts that in the period from 2006 to 2009 she found the applicant's presence in her life after so many years of absence and inconsistency, unsettling and stressful and regretted her actions in allowing the applicant back into her life.
In October 2009 the respondent mother effectively terminated her relationship with the applicant.
In December 2009 the child of the subject of these proceedings was born. The applicant has never met the child and the child has no relationship at all with the applicant.
Subsequently the respondent mother sought counselling in relation to her childhood issues.
A report from the mother's treating psychologist Ms T is in evidence. That report is dated the 22nd of August 2011. The respondent mother commenced treatment in July 2010 and completed treatment in the June 2011. She was treated for anxiety and depression arising from a number of factors. The respondent mother's relationship with the applicant was one of the factors in relation to which the respondent mother sought assistance. The respondent mother asserted that the applicant showed no insight into his past neglect or her difficult childhood, nor did he seem to feel that he had any responsibility for what had transpired during her childhood. The respondent mother stated that the applicant showed no empathy for her experiences as a child or any remorse. The psychologist asserts that as a result of her experience of her father the respondent mother is very frightened of her father and his intrusion into her life. She does not consider him to be a safe and appropriate person to be in contact with her daughter in any context.
Ms T reports: that the respondent mother responded well to therapy for anxiety and depression. She is an intelligent and articulate individual and she has provided a caring and loving environment for the child and has a good attachment to her. Her relationship with the husband is also very strong and loving. The respondent mother's depression and anxiety largely resolved with an ability to identify the triggers of her past, including contact with her parents. Ms T opines that the respondent mother's well-being will be significantly reduced by any interaction with her parents and recommends no contact between either of the respondent mother’s parents and her daughter.
In July 2010 the respondent mother received two letters from the Family Relationships Centre in Newcastle in which the applicant sought arrangements that would facilitate him being involved in the child's life.
In response to the letters the respondent mother and the respondent father attended at the Family Relationships Centre in Sydney where the issue was deemed unsuitable for mediation.
In August 2010 the respondents through their solicitors wrote to the applicant advising that he was to have no contact with the child and that they found his behaviour threatening, and that in the event that legal action was commenced by him they would seek a dismissal of his application and payment of their costs.
The applicant maternal grandfather is 57 years of age and in good health. He lives alone in premises at [omitted] near Newcastle and is retired.
The applicant’s first affidavit gives no history of his relationship with the respondent mother save to note that he attended her wedding and had a conversation with the respondent mother in November 2008 where the respondent mother admitted to suffering from endometriosis.
The applicant further deposes to the cessation of the respondent mother's relationship with him in October 2009.
He asserts no relationship whatsoever with the subject child.
On the 8th of September 2011 the applicant filed a further affidavit in the proceedings. That affidavit had exhibited to it a large number of the photographs and handwritten cards and documents from the respondent mother's childhood. More importantly the applicant deposes that after he had tried to obtain “reconciliation with his daughter” through in the Family Relationships Centre at Newcastle he received the letter from the respondent's solicitors referred to above.
The affidavit contains a rambling dissertation as to the applicant's contact with the respondent mother historically, a detailed dissertation the as to circumstances surrounding the maternal grandmother's accident in 1993 (sic) and her subsequent hospitalisation and treatment and attaching supporting statements from third parties who have not deposed an affidavit in support of the applicant.
Most tellingly, there is not one word in the affidavit referred to relating to the child the subject of these proceedings.
On the 8th of September 2011 the applicant filed a further short handwritten affidavit attaching a supporting statement from a third party who has not deposed an affidavit in support of the applicant together with Internet printouts relating to the maternal great-grandfather and his life. Once again there is not one word in this affidavit relating to the child of the subject of these proceedings.
The applicant also relies upon an affidavit of Ms C filed on the 12th of September 2011. This affidavit focuses upon the deponent's perceptions of the relationship between the applicant and the respondent mother and is more particularly framed as a character reference in support of the applicant.

The Family Consultants Memorandum:

The parties attended upon a family consultant for the purposes of a conference under the provisions of section 11F of the Act. The consultants memorandum dated the 16th of September 2011 was admitted into evidence by consent as Exhibit A.
The memorandum notes that the maternal grandfather is concerned that the mother is not well psychologically and is not making sound decisions such as her decision to cease all communication with the maternal grandfather approximately 2 years ago and that therefore the subject child may be at risk and is unnecessarily being denied a relationship with the maternal grandfather.
The memorandum further notes that the parents assert that the mother has made a considered and sound decision as an adult to not have any further relationship with her father and that the subject child should also not have any relationship with the maternal grandfather. The father is supportive of his wife's decision and has also chosen not to have any further involvement with the maternal grandfather.
The family consultant recommends that if the court considers that there are grounds to reasonably suspect that the mother is not functioning well psychologically and the decision to cease communication with the maternal grandfather was not soundly made then the mother should provide further medical information or alternatively that further medical information and possibly assessment occurs independently.

Issues

The court is asked to summarily dismiss the applicant’s application under the provisions of s.17A of the Federal Magistrates Act 1999.
The court is asked in the alternative to make an order dismissing the proceedings under s.118 of the Act and make an order requiring the applicant to seek leave to commence further proceedings.

Summary Dismissal:

Section 17A of the Federal Magistrates Act 1999 provides as follows:
17A(1) The Federal Magistrates 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.
17A(2) The Federal Magistrates 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.
17A(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.
17A(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of the Federal Magistrates Court Rules2001 reflects s.17A of the Act. The Rule is in the following form:
13.10 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; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Section 17A of the Federal Magistrates Act 1999 has been comprehensively considered by Driver FM in Vivid Entertainment LLC v Digital Cinema Australia Pty Ltd [2007] FMCA 157 (19 March 2007). In that case his Honour considered the decisions of the Federal Court in which the meaning of the identically worded s.31A of the Federal Court of Australia Act 1976 were considered. His Honour concluded:
“29. I agree with French J that s.17A, like s.31A, has nothing to do with striking out pleadings. The section, and the Court rules which amplify it, deal with summary judgment and summary dismissal. Pleadings may be relevant in order to determine whether a party should receive summary judgment or suffer summary dismissal but the section, and the rules, are not vehicles for dealing with deficient pleadings. That is, if anything, more clear in this Court, which is not a court of pleadings. Further, in considering whether an apparently hopeless case can be saved by amendment, or further evidence, it may be necessary to consider the conduct of the party who would benefit from that indulgence, and the other circumstances of the proceedings, and determine whether that party is entitled to it, or whether the party should be denied that indulgence.
30.    Otherwise, in the absence of guidance from the Full Federal Court on the interpretation of s.31A, I will follow the cautious approach of Rares J and Jacobson J. In particular, I agree with and will apply the principles summarised by Jacobson J, in the following slightly amended terms:
·    In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
·    There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
·    Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
·    Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
·    The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.
In White Industries Australia v Assistant Commissioner of Taxation [2007] FCA 511 (11 April 2007) Lindgren J. at [55] - [59] observed:
55. Section 31A and the identically worded s 17A of the Federal Magistrates Act 1999 (Cth) ("the FM Act") were introduced by the Migration Litigation Reform Act 2005 (Cth) (No 137 2005) which commenced on 1 December 2005. On the Second Reading Speech on the Bill for that Act, the Attorney-General said that the new provision would strengthen "the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". By "broadening the grounds" the Attorney-General was referring to the formula "no reasonable prospects of success" as contrasted with a "hopeless" or "bound to fail" test. .....
58. …… while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18]- [28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975; MG Distribution Pty Ltd v Khan [2006] FMCA 666; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227; Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401; Hicks v Ruddock [2007] FCA 299.

As observed by Jarrett FM in Jacobs v. Vale [2008] FMCAfam 641 (1 July 2008) at [20]…. “as His Honour (Lindgren J.) makes clear, s.17A is a provision of general application to all proceedings in the Federal Magistrates Court. So too, rule 13.10 of the Federal Magistrates Court Rules 2001 is a rule that applies to all proceedings commenced in this court. There is nothing in the Federal Magistrates Act 1999, the Federal Magistrates Court Rules or the Family Law Act 1975 to suggest the contrary.”
In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 (15 April 2008) the Full Court of the Federal Court considered the provisions of s31A of the Federal Court of Australia Act.
Finklestein J. observed at [21]-[23]:
21 In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[2006] FCA 1352; Rares J attempted to describe the requisite standard under s 31A. After reviewing many cases, most from different and not necessarily analogous areas, he came down to the view that if there was "a real issue of fact to be decided" or "possibly, where there is a real issue of law" to be resolved the matter should go to trial……...
22 If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.
23 In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.
Gordon J. observed at [123]-[132]:
“123. Section 31A is a summary procedure. It enables the Court to give judgment where a proceeding or part of a proceeding has "no reasonable prospects of success". A number of principles inform consideration of an application for judgment under s 31A of the Federal Court Act.
124. First, the express words of s 31A impose a different and less stringent test to that described in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69. As was explained in the second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A of the Federal Court Act, the legislative purpose of s 31A was to strengthen " ... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases":….
125. That such a provision should exist is not surprising. In modern litigation, cost and delay are two prominent features of the legal landscape: Gleeson CJ (1998) Commentary on Paper by Lord Browne-Wilkinson (Supreme Court of New South Wales Judges’ Conference) (viewed 26 November 2007) (stating that "civil litigation is far too expensive" and "there should be an increased emphasis on summary disposal of proceedings which are amenable to such treatment"). Section 31A is a provision which permits, and assists, the Court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospect of success. At the same time, it is a provision that ensures that no injustice is done to a party. The mechanism adopted to achieve these objectives is that before judgment is entered, the claim or part of the claim must have "no reasonable prospect of success.
127.…….each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co(1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary;
129.……….s 31A must be read as conferring a power while indicating the circumstances in which it is to be used, i.e., when there is "no reasonable prospect of success". To construe the statute otherwise would give judges discretion to allow even hopeless cases to proceed, which could not have been within the contemplation of a legislature that intended to make summary judgment easier to obtain. Therefore, to the extent that previous decisions of the Federal Court may be understood as suggesting that s 31A confers a general discretion (eg Boston CommercialServices Pty Ltd v GE Capital Finance Australasia Pty Ltd[2006] FCA 1352; (2006) 70 IPR 146 at [45]), such a construction of the statutory language is rejected……...
132.………in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq)[2006] FCA 1416 at [30]; Boston Commercial Services at [45]. I emphasize "reasonable" because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
It is clear that each matter must be considered in the context of the applicable law and the facts asserted in determining whether the matter before the court has “no reasonable prospects of success”. The test must consider not that there be “any chance” of success but that the prospects are gauged in terms of being rational, realistic, logical or sound.
The court must be cautious not to do injustice, and to consider that amendment of the subject application and further evidence might be possible. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.

The Orders Sought: Parenting:

In Church v T Overton & Anor [2008] FamCA 965, Benjamin J made some comment about whether or not grandparents have a special entitlement to see or communicate with grandchildren.
His Honour stated commencing at [28]:
“Do grandparents have special entitlements to see or communicate with grandchildren?
28.The Family Law Act places parents in a special position in respect of their children. The objects and principles (s 60B supra) clearly set out their importance. The primary considerations (s 60CC(2) of the Act) weight the importance of a meaningful relationship between child and parent against the need to protect a child from harm.
29.The Family Law Amendment (Shared Parental Responsibility) Act 2006 amended various sections of the Family Law Act in relation to parenting orders and made explicit reference to grandparents.
30.On face value the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development. The only people in such a special category are parents. The principles which support the objects of Part VII of the Act – the part dealing with children - refer to grandparents. Section 60B(2)(b) says:
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
31.Grandparents are included with “other relatives” as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development, and if that is the case and it is in the best interest of the child then the child has a right to see that grandparent.
32.The Explanatory Memorandum accompanying the 2006 amendments explained as to s 60B(2):
39. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child's life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children
33.The legislation specifically empowers a grandparent to apply for a parenting order. Section 65C of the Act states (emphasis added):
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child
34.Parenting orders can be made in favour of grandparents, who are given a specific inclusion in section 64B of the Act. This is not surprising as sometimes grandparents are the sole stable feature in the lives of some children.
35.Grandparents are also referred to section 65G of the Act, in which the legislature imposes some conditions upon a court if a residence order is to be made otherwise than in favour of a ‘parent, grandparent or other relative of the child.’ This gives grandparents some special significance in terms of parenting.
36.Of the 2006 amendments the Explanatory Memorandum said in respect of s60CC(3)(d) and 60CC(3)(f):
60. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.
62. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.
37.In his second reading speech to the Bill in the House of Representatives on 8 December 2005 the Honourable Phillip Ruddock said:
“The bill contains changes to better recognise the interests of children in spending time with grandparents and other relatives, who also play an important role in the raising of children.”
38.On the literal reading of s 60B 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.Counsel for the grandfather submitted that the community is increasingly aware of the role and importance of grandparents in children’s lives and that this is reflected by the 2006 amendments. He further submitted that whilst it would be unusual for a stranger who has had no relationship with a child to apply for a “time” order, it would not be unusual for a biological relative such as a grandfather to seek a parenting order for a child they had never seen, saying:
They have a relationship with that child by virtue of their biological/genetic connection. That connection is the cultural, family and genetic heritage of the child and the court should not lightly disregard the importance to the child of “knowing” their family background especially where that parent or grandparent has the capacity and is willing and able to provide that connection and care.
40.The independent children’s lawyer said in his closing submissions:
There has been recognition of the role of grandparents for some time in the Family Law Act. It’s an implicit recognition of their role because they have been specified as people who can make applications but at no stage has the legislation given them any rights over and above any other person to make an application for contact, or indeed, for a parenting order. They are there as an example and no doubt the legislation had in mind bringing the particular position of grandparents as significant persons to the attention of the court, but the important words are “people significant to their care, welfare and development…
41.It is clear that the Act has been specifically amended to refer to grandparents at various points. The legislative intent is that interested grandparents should be specifically considered and recognised when determining which orders to make in the best interests of a child.
42.In Sampson & Jacks [2008] FamCA 176, O’Ryan J said;
32. In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act 2006. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.
43.The Act 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.
His Honour however further observed at [61]:
61.The 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.
......
63. ……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.
64.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 following Sections of the Family Law Act 1975 are relevant:

ss 64B(2)(b)
(2) A parenting order may deal with…
……………
(b) the time a child is to spend with another person or other persons;

ss 64B(6)(b)
……………
( b) a parenting order that provides that a child is to spend time with a person is made in favour of that person;
ss 64C
“A parenting order in relation to a child may be made in favour of a parent of the child or some other person.”
ss 65C(ba)

“ A parenting order in relation to a child may be applied for by:
……

(ba) a grandparent of the child….

These sections indicate that the maternal grandfather has standing to bring the subject application.
In this matter the applicant has no meaningful attachment or relationship with the child and the parents are absolutely opposed to the applicant having a relationship with the child.
There are no significant issues as to how the child is being parented. Indeed the application appears to be promulgated not in the context of the best interests of the child but it an endeavour to engage the respondents in litigation that might ameliorate the applicant’s relationship with the respondent mother, his daughter.
The court is to have regard to the best interests of the child in the context of this parenting application.
It is clear that any litigation will be protracted by reason of the courts own processes.
It is also clear that such litigation will be stressful for the parents of the child particularly the mother, the child’s primary carer, by reason of her recent health issues. It is of concern to the court that any undue stress on the mother will of necessity impact on the child. Such a course cannot be said to be in the child’s best interests.
The child is at the time of judgment only 20 months old, yet the application seeks to separate the child from the mother to the care, albeit briefly of a person not known to the child and with whom the parents want no relationship.
By reason of the background facts set out above the application has no reasonable prospects of success and the maternal grandfather’s application shall be dismissed under s.17A.

Section 118: Frivolous and Vexatious:

Section 118(1)(a) and (c) of the Family Law Act 1975 provides:-
“The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:-
(a)dismiss the proceedings;
...
(c)if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
In Bemert & Swallow [2009] FamCA 5 Watts J. considered s.118 at [192] – [197]:
“192. The aim of the section is to prevent the initiation or maintenance of proceedings that are an abuse of the processes of the Court. The words “frivolous” and “vexatious” are not defined by the Family Law Act 1975. …….
193. An Explanatory Guide (accompanying but not forming part of the Family Law Rules 2004) provides the following explanation of the words “frivolous” and “vexatious”:
frivolous— not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).”
“vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous)…..
194. It can be seen, the words “frivolous” and “vexatious” are related in that, by definition, a frivolous application is a vexatious application.
195. Mullane J in Darwin and Darwin [2008] FamCA 588 said:-
16.   “Frivolous” is defined by the Macquarie Dictionary as “of little or no weight, worth or importance”, “Not worthy of serious notice”, or “characterised by lack of seriousness or sense”.
17.   The mother’s case is not that the father’s application is frivolous. From the evidence it appears she relies on the ground that it is “vexatious”.
18.   “Vexatious” is defined by the Macquarie Dictionary as “something that vexes” and “vex” is defined as “to irritate, annoy, provoke, make angry”, “to torment”, “plague, worry”, and in the sense use of legal actions is defined as “instituted without sufficient grounds, and serving only to cause annoyance”…….
197. In Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, at 491, Roden J set out a test for determining whether proceedings are vexatious, in the context of s84 of the Supreme Court Act 1970 (NSW), as it then was. This test has been widely cited and applied (see for example, Mullane J in Darwin and Darwin [2008] FamCA 588 at paragraph 20). Roden J set out the test as follows:
“I believe that the test may be expressed in the following terms:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4.In order to fall within the terms of s 84:
(a)    proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);
(b)    the proceedings must have been “habitually and persistently” instituted by the litigant.”
198. In relation to paragraph 4(a), s 84 Supreme Court Act 1970 (set out earlier) contains a condition precedent, that a person has to have “habitually and persistently and without reasonable ground instituted vexatious legal proceedings”. That is not a requirement of s 118(1) Family Law Act 1975. The fact that a current proceeding is vexatious is sufficient.”

From the background facts above it is clear that these proceedings are brought with some collateral purpose, that being the applicant’s focus not being on the child but his relationship with his daughter as identified above.
Further the proceedings are in their present context untenable in that they can not be said to be in the best interests of the subject child for the reasons set out above and as such are manifestly groundless so as to be utterly hopeless.
Notwithstanding the preceding considerations it is also open to infer that these proceedings have been brought to annoy or embarrass the respondents or either of them.
The import of the above findings is that notwithstanding the fate of the proceedings under s.17A of the Federal Magistrates Act 1999 the court would have similarly dismissed the proceedings under s.118 of the Act.
Whilst the dynamics of family relationships may ebb and flow over the years and of course the child the subject of this application will mature and enquire as to familial ancestry both present and past, it is primarily a matter for the child’s parents whilst the child is of tender years to make decisions they perceive to be in the child’s best interests.
As Benjamin J. said:
“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”.
For these reasons the court will make an order under s.118 of the Act as sought.

The Respondents Injunctive Relief.

The court is not satisfied that there is evidence to support the relief sought. The Respondents have their remedies under state law in the event that the applicant engages in harassment or such other conduct.
For these reasons the court makes the orders set out at the commencement of this judgment.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Foster FM

Date: 4 November 2011