Grimshaw and Thanh and Anor
[2014] FCCA 2614
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRIMSHAW & THANH & ANOR | [2014] FCCA 2614 |
| Catchwords: FAMILY LAW – Parenting – where the applicant is not the parent of the child – where the parents of the child are in an intact relationship – whether the applicant has standing to bring proceedings – where the parents seek that the application be summarily dismissed – where the application has no reasonable prospects of success – application summarily dismissed. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 43, 60B, 60CA, 60CC, 64B, 65C |
| Church & Overton & Anor [2008] FamCA 953 The Honourable Peter Nygh, ‘The New Part VII—an Overview’ (1996) 10 Australian Journal of Family Law 1. |
| Applicant: | MR GRIMSHAW |
| First Respondent: | MS THANH |
| Second Respondent: | MR THANH |
| File Number: | SYC 7444 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing date: | 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Family Legal |
| Counsel for the First and Second Respondents: | Mr Lethbridge SC |
| Solicitors for the First and Second Respondents: | Watts McCray |
THE COURT ORDERS THAT:
The applicant’s Initiating Application filed 16 December 2013 be summarily dismissed.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. The Court will then deal with that matter by way of written submissions. If no such application is made within the time period specified, there will be no order as to costs.
All outstanding applications (save as to costs, including any reserved costs), otherwise, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Grimshaw & Thanh & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7444 of 2013
| MR GRIMSHAW |
Applicant
And
| MS THANH |
First Respondent
| MR THANH |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in respect of the child, X (“the child”), born (omitted) 2006 and who is currently 8 years of age, at the time of the hearing.
The applicant is not the biological father of the child.
The respondents are the biological mother and father of the child and live together as husband and wife. The child lives with the respondents.
By an Initiating Application filed 16 December 2013, the applicant sought various parenting orders in respect of the child, both on a final and interim basis, inter alia, as follows:
a)That the child lives with the mother.
b)That the child spends regular time with the applicant as determined by the Court.
c)That the mother facilitates Skype and phone conversations between the applicant and the child at such times that the Court deems appropriate.
d)That neither party denigrate the other while in the hearing or presence of the child.
e)That each party notify the other of any changes to their address or phone number within seven days of such change occurring.
f)That both parties shall permit the child to contact the other party at any time he wishes whilst he is in their respective care and shall facilitate the call upon the child’s request.
The applicant’s Initiating Application named only the mother as the respondent. On the first return of that application, being 12 March 2014, a Response was filed by both the mother and the father, which sought orders that the applicant’s Initiating Application be dismissed and that the applicant pay the respondent’s costs on an indemnity basis.
On the first return date of the Initiating Application, Ms Bedford who appeared for the respondents, opposed any order for there to be a child dispute conference or a child inclusive conference. A timetable was provided for the parties to file and serve their affidavit material and the matter was then adjourned for determination of the threshold jurisdiction issue and summary dismissal argument. The respondents’ costs were reserved. The parties’ position with respect to the taking of any oral evidence was also reserved subject to compliance with directions for the filing of affidavits.
The matter was, subsequently, listed on 24 October 2014 for determination. On that occasion, Mr Thexton appeared for the applicant and Mr Lethbridge of Senior Counsel appeared for the respondent parents.
Hearing
The applicant relied on:-
a)His affidavit affirmed on 2 October 2013 and filed on 16 December 2013.
b)His affidavit affirmed on 24 March 2014 and filed on 26 March 2014.
c)The affidavit of Ms D (the applicant’s mother) affirmed on 31 March 2014 and filed on 2 April 2014.
The respondents relied on:
a)The affidavit of the mother affirmed on 11 March 2014 and filed on 12 March 2014.
b)The affidavit of the mother affirmed on 23 October 2014 and filed on that day, limited to paragraphs 1, 2 (not including the mother’s affidavit affirmed 9 April 2014), 3 and 4.
c)The affidavit of the father sworn/affirmed on 11 March 2014 and filed on 12 March 2014, limited to paragraphs 1 to 16.
The following documents were placed into evidence as follows:
Exhibit No
Document
Tendered by
Court 1
Agreed chronology of facts
Court
A
Unsigned letter from the applicant to “whom it may concern” dated 18 November 2009
Applicant
The Court’s determination is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties’ legal representatives. As such, the Court is not in a position to make findings of fact in relation to disputed matters. However, given that the matter for determination involved a jurisdictional and a summary dismissal argument, the evidence of the applicant has been accepted at its highest. In those circumstances, there was no need for cross-examination of the parties.
Factual Matters
There appear to be a number of relevant uncontested and agreed facts, as taken from Exhibit “Court 1”, as follows:
a)On (omitted) 1977, the father was born and he is now aged 37 years.
b)On (omitted) 1977, the mother was born and she is now aged 37 years.
c)On (omitted) 1979, the applicant was born and he is now aged 35 years.
d)The applicant is a (occupation omitted) with (employer omitted).
e)In 2003, the father and the mother commenced cohabitation.
f)On (omitted) 2004, the father and the mother married.
g)On (omitted) 2006, the child was born.
h)On 5 June 2006, the father and the mother separated but reunited a short time thereafter.
i)On 5 March 2007, the mother and the child travelled between Adelaide, Canberra and Melbourne.
j)In April 2007, the mother and the father again separated.
k)Between April 2007 and August 2007, the mother and the child travelled between Adelaide, Canberra and Melbourne.
l)On (omitted) 2007, the applicant and the mother met. The applicant stating that, at that time, the mother and the child were living in Adelaide and flying to Canberra to "facilitate visitations".
m)In mid-September 2007, the mother and the child travelled to Adelaide to celebrate the birth of the child’s cousin and to have a belated 1st birthday for the child. The applicant did not travel with them.
n)In September/October 2007, the applicant and the mother commenced a relationship that is, when the child was about 1 year and 7 months old.
o)In October 2007, the mother and the child travelled to Adelaide for the child’s cousin’s first month celebration, which is a Vietnamese custom. The applicant did not travel with them.
p)On 6 November 2007, the mother, the applicant and the child attended the Community Day for 2 or so hours at a park across the road from the mother’s home.
q)In December 2007, January 2008 and February 2008, the mother and the child travelled to Adelaide to spend Christmas and holiday time with the mother’s family. The applicant did not travel with them.
r)In May 2008, the applicant travelled interstate to attend a (omitted) concert. The mother and the child did not travel with him.
s)In mid to late 2008, the applicant took the child to a carnival in a local park. They were together, without the mother present, for approximately 2 ½ hours.
t)In September 2008, the applicant travelled overseas for approximately six weeks. The mother and the child did not travel with him.
u)In September 2008, final Consent Orders were entered into between the father and the mother, which provided for the father and the mother to have equal shared parental responsibility for the child, for the child to live with the mother and spend defined time with father. The father paid child support for the child.
v)At Christmas time in 2008, the mother’s family travelled to Canberra.
w)In January 2009, the mother and the child travelled to Adelaide and then to (omitted) with the mother's sister's family and returned later that month. The applicant did not travel with them.
x)In March 2009, the mother and the applicant ended their relationship that is, when the child was about 3 years and 1 month old.
y)On 20 March 2009, the mother completed an application for enrolment to (omitted) College for the child. The mother was the only person listed on that application as the child’s parent/guardian. The father's details were, initially, inserted but later deleted from page two of the application.
z)In May/June 2009, the applicant travelled to (country omitted). The mother and the child did not travel with him.
aa)On 10 May 2009, the applicant sent the mother an email beginning: “hello beautiful friend.”
bb)On 18 May 2009, the applicant sent the mother an email stating:-
“i said 'person' as i didn't want to state 'friend'… as i believe we are more than 'friend' and will always be more than friends…so you are my most fav person…ie. Somewhere between bestfriends and bestest friends ever” (sic)
cc)On 30 May 2009, the mother set the applicant an email:
“Well, I despise hypircits so I am concerned that I would be committing that crime if we remained friends knowing that you were waiting for me…it really needs to be pure for it to work revolving around this new path we are taking…With these final words said, it should now bring this topic to a close making way for a sincere loving and pure friendship which I am looking forward to sharing very much.” (sic)
dd)On 9 June 2009, the mother sent the applicant an email stating:-
“I really don't know what else to say…I jsut want to remmeber you fondly and appreciate you for the person that you haev chosen to awake to…I loved you with all my heart but a relationship with you was one of wishful thinking…this explains why we would break up and make up over and over again, this is the reality of us.…I understand it might not be until I move away that we will find closure but that is what we need to be working towards if we are to ever get on with our lives. I have moved on, it will soon hit home and when it does we will be better for it." (sic)
ee)On 10 June 2009, the mother sent the applicant an email stating:-
“Mr Grimshaw, I really need you to support me as a friend. It is emotinaoly distressing having you continue what you are doing, I feel you have always done this, keep pulling me along and this is no different. We were where we are for a reason and I can do without your emotional manipulations. I'm beginning to feel really pressured by your intentions and I need your friendship to be just that, nothing more. I need to salvage my emotional well being and if you wnat to do what you do then please do it at your own accord without expectations of me. I am starting to feel resentful of all this because our boat has sailed and now is not the time to play your cards, especially using the love I have for you. What if I don't love you anymore, would you be happy to let go? I need to find the love I have for you in Mr Thanh. That is what I want and is in live with my value, doing whatever it takes to make my marriage/family work. We never had a family, remember your friends were your family first and foremost and I respect this, I don't want you to change anythign for me because it will only cause resentment later down the track and I don't really have much trust in you that you are any different to what I know o you, I acknowledge both your strengths and weaknesses. It is who you are and cannot be disguised. Have fun in (country omitted) and may your dicoveries be even greater. I look forward to a friendship if you can accept this.” (sic)
ff)In late 2009, the applicant told the mother he used a prostitute when he travelled to (country omitted) with a friend.
gg)Between September 2010 and December 2010, the mother and the child lived with the father in (country omitted).
hh)In December 2010, the mother and the child returned to live in Adelaide, the father remaining in (country omitted), but returned briefly in January 2011. The applicant travelled to Adelaide and stayed with his uncle. The mother attended a BBQ at the applicant's uncle's home for approximately 2 hours.
ii)In February 2011, the child commenced kindergarten in Adelaide.
jj)In May/June 2011, the father returned to Australia from (country omitted).
kk)In September 2011, the mother and the father reconciled and resumed cohabitation in Sydney.
ll)In September 2011 to the present, the mother and the father and the child have travelled as a family to Adelaide to spend time with family or have travelled elsewhere, including the (omitted) and (country omitted). The applicant has not travelled with them.
mm)On 1 February 2012, the mother sent a Facebook message to the applicant's mother stating:-
“Hello Ms D. I hope you have been well, I have been busy and am writingto as for your advice to see how best to cope with Mr Grimshaw about him not letting go. its been nearly a year! It annoys me so much that he distortrs information to match what he wants to portray, like he says its only been 6 motnhs but its been longer than that.” (sic).
nn)In May 2012, the applicant sent the mother an email containing a photo of a barbie doll in a kitchen with a Ken doll's headless body chained to the wall, and the Ken doll's head in the fridge. There was a knife and blood all over the kitchen floor. In his accompanying email, he wrote: “Looks like your beautiful and unconditional husband Mr Thanh making good on his PROMISE to cut my head off.”
oo)On 13 June 2012, the applicant emailed the mother to request time with the child. The mother refused and wrote an email to the applicant stating:-
“It has been a solid year now since I put my foot down and put an end to the vicious cycle I felt stuck in. I mentioned to you that I could only offer friendship and you are adamant you were only interested in one thing and I kept telling you that I can not be friends with someone who wanted more from me since I can't give it. In my world it is not an option to be in realations with someone who made it perfectly clear that he only wants one thing knowing I cannot offer it. You need to remember these conversations, I told you time and time again the consequences of that and you pushed and pushed so hard I had to keep my word and cease contact. I stopped correspondence because you would not listen. And since then you have used it to rant and rave to yourself that "why did you do this to me…a friend does not do this…I deserve better…ect" fuelling your stories to justify your actions becoming a menance to everyone in my life. I have been advised to take legal action to stop you harassing once and for all. Contacting my friends and family is not acceptable, I asked you time and time again to stop and you impose on my friends some of whom you haven't even met. You must stop it, not some time in the future or even tomorrow, you need to stop it this instance. They cannot help. They all understand your pain, everyone has been there before but they all respect what I am committed to. I am also giving you notice to take X’s picture off your Facebook page, he is a minor and I do not give permission to display them publicly. Despite all that you have done, threatening everyones personal space and wellbeing, I, we, all forgive you provided that you stop contacting them. I know you have the power inside you to meet these measure for everyones sake. No one wants to see you get hurt any further. Everyone wants to see you move on and leave my family alone, they want to find peace within yourself without using anyone. I know you are bigger than what you have been behaving. If you must express, the only acceptable contact option is this account and for any excuse or any reason whatsoever contacting any member of my family or family as NOW. You can let go of anything you feel you must say to them, they understand more than you know, they forgive you and just need you to stop writing. I forgive you too. Honest.” (sic)
pp)On 16 December 2013, the applicant filed his Initiating Application in this Court.
qq)On 8 April 2014, the mother’s solicitors wrote to the applicant’s solicitors inviting them to inspect the mother’s records (medical and school documents relating to the child, bank accounts etc.) which make no mention of the applicant.
rr)In 2014, the child is currently in Year 3 at school, having commenced kindergarten in 2011 in Adelaide and then attending Kindergarten in Sydney.
There appear to be a number of disputed facts, including the following:
a)The duration of the relationship between the applicant and the mother.
b)The amount of time that the applicant spent with the child during the relationship and post-separation.
c)The nature of the involvement of the applicant in the child’s life.
The applicant’s evidence was to the following effect:
a)He was introduced to the child in about September 2007, when the child was approximately 1 year and 6 months old.
b)When he met the mother she was living in a refuge in (omitted) but was later transferred to temporary accommodation in (omitted), Canberra. At this time, he stayed over “approximately 5-6 nights” per week, “whilst also maintaining [his] own residence”, where the mother and the child would stay on occasion. The applicant said that this existed throughout 2008 and 2009 where he and the mother maintained the mother’s 2 bedroom apartment in (omitted) and his 1 bedroom unit in the suburb of (omitted). However, despite this evidence, at the hearing, the applicant tendered an unsigned letter purporting to be evidence of the fact that the applicant had moved out of his apartment, which had been rented out to someone else.
c)That he treated the child “as his own son” when he was in an exclusive and committed relationship with the mother between September 2007 and March 2009. That is, for a period of 18 months.
d)That his relationship with the mother went through some “rough patches”, including a separation around Christmas 2008 before reconciling on Boxing Day 2008.
e)That the mother did not like the label of “a couple” and the applicant was not allowed to tell his friends that he was in a boyfriend/girlfriend relationship with the mother.
f)That the mother did not like the applicant’s friends and did not want to be associated with them.
g)That despite breaking up with the mother in March 2009, that he continued to “maintain the role of primary care-giver” for the child and saw the child approximately 4 to 5 times per week until the end of 2009 and that he and the mother maintained an intimate sexual relationship.
h)The child called the applicant “Uncle Mr Grimshaw” apart from a brief period in 2009 when the child called him “dad”. The parties agreed that the child would call the applicant “Uncle Mr Grimshaw”.
i)That following the mother’s relocation to Sydney in January 2010, the applicant had no contact with the child until March 2010.
j)That in January and February 2010, the applicant continued to send text messages to the mother, including text messages which read “All my love to [the child]” but received no response.
k)That in April 2010, the applicant spent a week with the mother and the child.
l)That when the mother relocated to (country omitted) in September 2010 with the child, the mother did not tell the applicant. While the mother was in (country omitted), the applicant had Skype conversations with the child.
m)That in December 2010, the mother returned with the child from (country omitted) to Australia and the applicant spent Christmas time with the mother and the child in Adelaide.
n)That in 2010, the applicant spent a total of 2 weeks with the child.
o)That the applicant recommenced his relationship with the mother between December 2010 until July 2011, when the mother and the father had separated. The mother and the child were living in Adelaide and the applicant was travelling back and forth between Canberra and Adelaide.
p)That around this time, the child asked the applicant to be his dad and has asked about him and whether he is going to see him again.
q)That throughout the first half of 2011, the applicant and the mother attempted to rebuild their “family life” together with the child, with the applicant visiting the mother in Adelaide in December 2010, February, March, April and June 2011, and the mother meeting him once in Sydney in January 2011.
r)That the mother ended her relationship with him in July 2011, choosing to reconcile with the child’s father.
s)That between June 2011 and January 2013, the applicant did not see the child.
t)That in October 2012, the applicant sought to mediate with the mother to arrange time with the child but the mother did not participate in that.
u)That on 10 January 2013, the applicant flew to Adelaide (from Canberra) and attended the (business omitted) owned by the mother’s family and spoke with the mother’s sister and asked her to pass on a message to the mother and while there, the applicant saw the child for a total of one hour in a shopping centre. It is unclear whether the mother knew that the applicant was flying to Adelaide with the view to seeing her and the child and the mother says the meeting took not one hour, but approximately 30 minutes.
v)On 14 January 2013, the applicant spoke with the child on Skype for one hour. During that conversation, the child had said that “his dad does not share him and gets angry when [the applicant’s] name is mentioned”.
w)The applicant said that he had spoken to the child on Skype in February 2013.
x)The applicant has not seen or communicated with the child since February 2013.
y)That during the abovementioned times, when the applicant and the mother were in a relationship (and in the absence of the father), that he had assumed parental responsibility for the child and had been involved in the child’s day to day care (including photographs to support the same), including:
i)Bathing the child;
ii)Changing nappies;
iii)Potty and toilet training;
iv)Dressing the child;
v)Assisting the mother with feeding the child;
vi)Settling the child for sleep;
vii)Attending to the child if he cried or was upset;
viii)Playing with the child;
ix)Helping the child develop speech, vocabulary and numbers;
x)Singing with the child;
xi)Reading the child books;
xii)Taking the child for walks to the park;
xiii)Spending time with the child at his mother’s residence;
xiv)Assisting the mother with changeovers for the child to spend time with the father;
xv)Accompanying the mother and child to swimming lessons and swimming with the child;
xvi)Joining the mother in attendance at playgroups with the child;
xvii)Shopping with the child;
xviii)“Being there” for the mother and the child when the child was unwell;
xix)Buying the child Christmas and birthday presents and buying presents for the mother on the child’s behalf;
xx)Joining the mother when picking the child up from play school;
xxi)Picking the child up from kindergarten in Adelaide on a number of occasions and meeting the child’s kindergarten teacher on one occasion;
xxii)In September 2009, receiving from the mother and the child a Father’s Day card;
xxiii)The applicant continued to send messages to the mother which included stating “all my love to [the child]”;
z)That he never denied the father’s access to the child and that he wanted to be available to the child as his “second dad”.
aa)That the applicant has concerns for the child’s development and emotional well-being.
bb)That the applicant does not believe it is in the child’s best interests to have someone who he loves and has seen as a father figure cut from his life.
cc)That the applicant, in maintaining a relationship with the child, will provide the child with a sense of security and trust in both the applicant and the father.
dd)That the applicant would like the child to be able to call him as well as spend time with his family.
ee)That the applicant was willing to travel and/or relocate to implement any Court-ordered regime.
The applicant’s mother’s evidence (Ms D) was to the following effect:
a)The mother and the child were welcomed into the applicant’s family.
b)She met the mother and the child on many occasions, including her 60th birthday dinner in (omitted) 2008.
c)In 2009, the mother and the child spent an early Christmas at her house.
d)She was Facebook friends with the mother.
e)She met up with the mother (but not the child) on 22/23 May 2011 when she was in Adelaide for work.
f)That after the “collapse” of the relationship between the applicant and the mother in July 2011, all her communication with the mother related to the applicant seeking to spend time with the child.
g)In January 2013, when the applicant spoke with the child on Skype, she also spoke with the child, as the Skype session was held at her home in Canberra.
The mother’s evidence was to the following effect:-
a)That between September/October 2007 and March 2009, that she and the applicant were in a casual relationship, maintaining separate residences, spending approximately one to 2 nights together each week.
b)The mother conceded that the applicant would “sometimes play with X or help him brush his teeth”.
c)The mother maintained that her relationship with the applicant lasted approximately 18 months, where they went from “casually together” to “just friends”. The mother conceded that the applicant had looked after the child on his own for, what she said, was a total of 8.5 hours.
d)The mother maintained that the applicant had very little day-to-day care of the child and that she was the child’s primary carer.
e)The mother conceded that if the child would say “hello” to the applicant when she was on Skype with the applicant. The applicant also conceded that most of the Skype contact between himself and the mother, when she was in (country omitted) occurred between them and not the child, given time differences and the child’s sleep routine.
f)The mother says that the applicant’s application has put some strain on her and the father’s relationship. The mother says from 2011 onwards she has attempted to minimise the applicant’s communication with her including deleting him from Facebook, changing her mobile phone number and blocking his email account (although the applicant says that he has, nevertheless, been in communication with the mother via that email account).
g)Since March 2014, the child has not spent any time with the applicant, nor spoken of him, nor has there been any written communication between the applicant and the child.
h)That she lives with the child and the father together as a family unit.
i)That the mother and the father have made all decisions relating to the child’s school and extracurricular activities in consultation with one another.
j)That she believes from the child’s perspective that he understands the applicant to be a former friend of hers who, on the occasions he has seen him, referred to the applicant as “Uncle Mr Grimshaw”.
k)That given her history with the applicant, she believes the applicant’s attempts to have orders made in relation to the child were to bring him and her back into contact with each other, which she did not want.
The father’s evidence was to the following effect:-
a)That the mother had been the child’s primary carer and that he had assisted in the child’s care as his work and study permitted.
b)That he and the mother had, at various times, separated but had reunited as family unit in September 2011.
Principles to be applied and procedure to be followed
The respondents seek that the applicant’s application be dismissed first, on the basis that they say the applicant does not have standing, pursuant to s.65C of the Family Law Act 1975 (“the Act”) to bring the application and, secondly, in the alternative, that the application should be summarily dismissed on the basis it has no reasonable prospects of success.
Standing
Section 65C of the Act provides that:
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.
Section 65C of the Act does not impose any restriction on who can actually file an application with the Court. In the Australian Journal of Family Law in March 1996 in an article entitled “The New Part VII – An Overview”, the Honourable Peter Nygh, in commenting on s.65C, stated that “…no prior leave of the court is required even where the applicant is not a parent or child. Busybodies may walk in from the street, as it were.”
However, once an application is filed by a person who would fall within the terms of “any other person” within s.65C(c), the qualification contained within that subsection must be considered by the Court. That consideration involves assessing the facts of the case to determine whether there is a sufficient nexus between the applicant and the child’s care, welfare or development. The applicant need only show that he or she is concerned with the care of the child, the welfare of the child or the development of the child. Given the use of the word “or”, any one of those concerns would be sufficient.
The respondents submitted that s.65C of the Act must not be read subject to the principles referred to in s.60B and 65DAA of the Act, but rather that it must be interpreted paying appropriate regard to those principles.
Mr Lethbridge SC referred to Justice Burr’s decision in KAM & MJR and Anor [1998] FamCA 1896 where his Honour referred to s.65C of the Act and stated that:
5.1.1. Any person may file an application for a parenting order.
5.1.2. A parenting order may be made in favour of a person other than a parent (Section 64C).
5.1.3. In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
5.1.4. That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case…
Mr Lethbridge SC submitted that, as his Honour Judge Driver did in R & M [2002] FMCAfam 279, the Court should reach the conclusion that the applicant falls outside the scope of s.65C of the Act given that :
…the obvious intention of Parliament was to exclude from the class of persons who may make an application for a parenting order persons who might be described as mere busybodies, or persons who may have a sincere interest in the welfare of a child but who have had no prior involvement with or connection to the child.
Mr Lethbridge SC submitted that the Court must not undertake a superficial examination of the facts when considering if the applicant is a person concerned with the care, welfare or development of the child. He further submitted that the evidence of the applicant must be considered in light of the common ground, being:
a)The child resides with his biological parents who cohabit in an intact marriage;
b)The applicant, even at its highest, has never been a permanent member of any household in which the child resided;
c)The applicant has had no meaningful contact with the child since 2011 and between December 2009 to July 2011, his contact with the child had been “sporadic at best”;
d)The applicant’s relationship with the child was more properly described as a prior acquaintance of the mother, who was at times an occupant of the child’s household and fulfilled babysitting duties and that those things have only occurred sporadically since December 2009 and not at all since July 2011.
Further, Mr Lethbridge SC also submitted that the Court must have regard to s.43 of the Act, which requires the Court to “give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children”.
Mr Thexton in referring to his client’s written submissions stated that the Court should have particular regard to s.60B(2)(b) of the Act which states:
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)
Section 4 of the Act defines relative of a child as including, inter alia, a step parent of the child. A step parent is also defined in s.4 of the Act as a person who:
(a) is not a parent of the child; and
(b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
(c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.
While it is not clear, even accepting the asserted facts of the applicant, as to whether the applicant would establish that he was the de facto partner of the mother for the purposes of s.4 of the Act, the Court accepts for the purposes of this application, taking the applicant’s evidence at its highest, that his relationship with the child went beyond one which was simply characterised as being an association akin to that of a prior acquaintance or associate of one of the parents who in the past was the sometime occupant of the child’s household and on occasion fulfilled a role akin to that of babysitter. In such circumstances, the Court is satisfied that the applicant, should be viewed as a person satisfying the relevant criteria of being of a person concerned with the care, welfare or development of the child, without the need to determine whether he was, as a threshold issue, a “relative” of the child, within the meaning of the Act.
However, notwithstanding the Court’s view that the applicant has standing, it is still open to the Court to summarily dismiss the applicant’s application, as promoted by the respondents, subject to a consideration of the principles relating to summary dismissal.
Summary Dismissal
The Court’s power to dismiss proceedings can be found in s.17A of the Federal Circuit Court of Australia Act 1999, which states:
(1) The Federal Circuit Court of Australia 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 of Australia 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 of Australia has apart from this section.
Rule 13.10 of the Federal Circuit Court Rules 2001 states as follows:
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.
Note For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.
The respondents base their application for summary dismissal on the basis that the applicant has no reasonable prospects of successfully prosecuting his application, within the terms of Rule 13.10(a) as set out at paragraph 32 above.
In Spencer v The Commonwealth of Australia (2010) 241 CLR 118, the High Court of Australia (French CJ and Gummow J) referred with approval to an earlier decision of Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 and said:
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried…
Their Honours also stated in considering s.31A(2) of the Federal Court of Australia Act (which is in similar terms to s.17A of the Federal Circuit Court of Australia Act 1999) that the Court must apply a “practical judgment” as to whether the applicant has more than a “fanciful” prospect of success. If the Court is of the view that the application has no more than a fanciful prospect of success, then it could be said to have no reasonable prospects of success. As a corollary, therefore, if it has more than a fanciful prospect of success, it could not then be said to have no reasonable prospects of success.
The procedure for summary dismissals of applications in respect of children is well known. In SPS & PLS [2008] FamCAFC 16, Warnick J summarised the principles in relation to summary dismissal applications as follows:
a)An application to dismiss an application for parenting orders does not neatly fit within the definition of a “parenting order” as set out in s.64B of the Act.
b)Despite this, because it is an application that involves a decision of whether or not the court should make a “parenting order”, s60CA of the Act is applied and the best interests of the child remain paramount.
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act, so far as they are relevant. Given that the applicant is not the parent of the child, a number of the s.60CC factors will not be applicable on the facts of this case. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) 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); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
… (emphasis added)
The thrust of the applicant’s position was as follows:
a)That when the mother was not with the father a relationship with the mother had developed to an extent that the applicant believed, at times, that they would operate as a family unit, including making enquiries to buy real estate together and that he would take an active interest in the child’s care and that this belief had been encouraged by the mother.
b)That as the child had asked him to be his “dad” and had recognised his role by saying “[I’m] lucky to have two dads who love [me] very much” that he wished to be involved in all aspects of the child’s life, including “school, sport, friends, family, milestones and life itself”.
c)That he had been involved in the child’s life to varying degrees in the period August 2007 to July 2011, from when the child was one year and 6 months old to 5 years and 4 months old.
d)That his request to see the child have had nothing to do with maintaining a relationship with the mother but that he believed the mother considered, as she had stated to him, that if he married his then girlfriend it would “help with visitations” with the child.
e)That he had introduced the mother and child to extended members of his family and friends.
f)That the mother had introduced him to extended members of her family and friends but that the mother had now requested her family to cease all communications with him.
g)That all persons who love the child should be in his life.
The applicant expressed some criticisms with respect to the father, as follows:
a)That the father’s personal opinions, fear and insecurity could adversely affect the child and impact on his own relationship with the child.
b)That the father did not maintain regular child support payments during the time when the applicant and the mother were in a relationship.
c)That the father did not show the same respect and grace to him as he showed to the father, given, he said, that the father knows that he was the one who actively raised the child when the father wasn’t there.
d)That the father was not cooperative and did not want to share the child with him and that the child was aware of this issue.
e)That if the child now “understands” that he is just a former friend of the mother’s that this is as a result of what the father and mother have convinced the child to believe and “deep down [the child] will always know the truth”.
The applicant has raised some concerns for the child but these were not fully articulated beyond the following:
a)That the child’s frequent relocations have been unsettling for him;
b)That it was of concern in not having the applicant, as someone who loves the child, in the child’s life;
c)That it was of concern that the child’s parents would want to deny the child the opportunity of having the applicant’s “love and care”; and
He raised no concerns as to the child’s health and care arrangements when with the mother and the father.
Should the application be summarily dismissed?
The respondents accept that given the nature of their summary dismissal application, the Court must proceed on the prima facie assumption that the evidence of the applicant will be accepted at its highest.
In relation to whether the applicant had no more than a “fanciful” prospect of success, Mr Lethbridge SC submitted that in the circumstances of this case, where the parties were in an intact marriage, it would only be in extreme circumstances where there was an obvious risk to the child that the Court would intervene and order the involvement of a third party in the child’s life, against the express wishes of the child’s parents. The Court accepts that submission and its relevance to the facts of this case.
Mr Lethbridge SC submitted that even accepting the applicant’s evidence at its highest, the Court could not conclude that is serves to establish any present relationship with the child or any past meaningful association which the child’s best interests indicate should be preserved, particularly, in circumstances where this is against the express wishes of the child’s parents. The Court also accepts that submission.
Mr Lethbridge SC submitted further that the very nature of the past relationship between the applicant and the mother which gave rise to the applicant coming into contact with the child was an “insurmountable hurdle” to the applicant’s desire to re-establish his relationship with the child, as it necessarily required an ongoing association with the respondents, and was not in the child’s best interests. Mr Lethbridge SC submitted that it was open to the Court to infer that that association will provide an ongoing destabilising element to the respondents’ relationship, given that they have reconciled since the applicant’s relationship with the mother. The Court accepts that position.
Somewhat curiously, the applicant submitted that this was not a case where there was any conflict between the parties. The very fact that the applicant has come to this Court seeking orders to spend time with the child suggests that there is conflict between the parties. The conflict being that the applicant wants to spend time with and communicate with the child and the parents of the child have exercised their parental responsibility in deciding that they do not want that to occur.
It is useful to summarise, as his Honour Justice Benjamin did in Church & Overton & Anor [2008] FamCA 953, the objects and principles of the Act when considering an application of this kind. The objects of the Act are as follows:
a)That both parents have a meaningful involvement in their child’s life;
b)That the child is protected from physical or psychological harm;
c)That the child receive adequate and proper parenting; and
d)The parents fulfil their duties and meet their parental responsibilities.
The principles of the Act are as follows:
a)That children have a right to be known and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development, such as grandparents and other relatives;
c)Parents jointly share the duties and responsibilities concerning the care, welfare and development of their children; and
d)Children have a right to enjoy their culture.
In this matter, save that the applicant says that the child has a right to spend time and communicate with him, the above objects and principles are all currently being met by the child’s parents given that they are living together as an intact family unit. As Justice Benjamin noted in Church & Overton & Anor [2008] FamCA 953 in relation to s.60B:
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.
…
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 the Court to peer over the shoulders of functional parents and second-guess the decisions they make regarding the upbringing of their children.
Presumption as to equal shared parental responsibility
The Court does not apply the presumption in this case. The respondents as the parents of the child do not seek the application of any parenting orders and seek simply the dismissal of the applicant’s Initiating Application.
The respondents as the biological parents have joint parental responsibility for the child at law. They have, in those terms, the right to determine who the child is to associate with and who the child should not associate with. The relationship that occurred between the mother and the applicant occurred at a time when the mother and the father were separated. The mother and the father have reconciled and present a joint position to the Court, exercising their parental responsibility. The Court should not lightly interfere with this exercise of responsibility. There is no suggestion that the parents have not fully considered the applicant’s application or are acting capriciously in the terms of their decision-making.
Primary considerations
When considering an application for summary dismissal, the best interests of the child remain paramount. However, because the application has been conducted on the papers and without any testing of the evidence, the Court cannot make any factual findings. The following examination of the child’s best interests is based on the matters referred to in paragraph 11 above.
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Given that the applicant is not the parent of the child, the first primary consideration is not applicable. The Court accepts, from the respondents’ point of view, the child is having a meaningful relationship with them.
The Court accepts that there is no issue of family violence raised by any of the parties.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
The applicant says that there is no evidence that the child does not like the him or does not want to spend time with the him.
The applicant says that the child has made some representations that he would want to spend time with him and that these “wishes” could be investigated by a family report writer appropriately appointed. The child’s wishes could also be assessed by the appointment of an Independent Children's Lawyer. However, both of those matters would be potentially invasive of the child’s position and, particularly, that of the child’s parents who oppose such appointments.
Given the nature of these proceedings, the child’s views have not been sought nor expected and the Court gives no weight to the applicant’s expression of them.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The Court accepts that the mother has been the child’s primary carer. This is conceded by the applicant who has seen his role as “supporting” the mother when in a relationship with her, in her care of the child. The applicant in his submissions stated that between December 2010 and June 2011, the mother was and has remained the child’s full-time carer. Certainly, since July 2011 the child has lived with the father and the mother in an intact family relationship.
The Court accepts on the applicant’s evidence that he is a person who would fall within the terms of this factor for consideration of his relationship with the child, subject to other factors weighing against it.
The applicant asserts that his own mother may be someone who has had a meaningful relationship with the child. The Court is of the view, based on the applicant’s own evidence, that her position is far more remote and little weight would be given to it.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The child’s parents have lived together as husband and wife since September 2011. The child’s parents, currently, make all decisions about major long term issues concerning the child.
In submissions, the applicant stated that the parties have been unable to reach decisions in relation to major long-term decisions about the child. That may relate to the parties in so far as the applicant’s involvement with the child is concerned, it does not, however, appear to relate to the parents themselves.
Interestingly, the applicant in his affidavit filed 16 December 2013, states that “in the absence of [the child’s] biological, father I assumed parental responsibility for [the child]”. This statement gives the Court some concern about the applicant’s understanding of his role in the care of the child, particularly when at the time that the applicant asserted that he had “assumed parental responsibility”, there were consent orders existing between the respondents, expressly providing that the respondents have equal shared parental responsibility for the child. Further, while the respondent father was not residing in the same city as the mother and the applicant, he certainly, even on the applicant’s own evidence was not “absent” and was entitled, pursuant to orders of the Court, to spend regular time with the child and to exercise that parental responsibility with the mother.
The Court gives significant weight to the parent’s expression of their current decision that the child not spend time or communicate with the applicant. That is a matter clearly within the discretion of the parents in exercising their parental responsibility.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The applicant in asserting that he has provided care for the child in the role of a “father figure”, misconstrues this factor, which relates to the child’s parents as defined.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The applicant says that while he is not seeking a “live with” order, the orders that he proposes will have limited effect on the time that the child spends with the mother. He says that by denying any time with him, there would be a change from that which the child was, otherwise, used to, in terms that the child would be separated from him when he had a history of being considered by the child as his “dad”.
If the child were to spend time with the applicant, the child would be separated from both his primary care givers and biological parents. The child has not spent any time (save for about 1 hour and some Skype time) with the applicant since July 2011 when the child was about 5 years old. If the child was to have no contact with the applicant, this would not amount to a change in his current circumstance, and some weight is attached to that.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Given that the child lives with his parents, this factor does not apply on the facts of this case.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The applicant asserts that if he is not allowed to communicate with the child there is a risk that there may be a detrimental effect on the child as to the child’s psychological needs may not be met. Apart from that assertion, there is no evidence to support the same.
The applicant, further, asserts that the child was being subjected to high conflict of the parties and that the current parenting arrangement may cause harm to the relationship between the child and the applicant. The Court accepts that this litigation may demonstrate a degree of conflict between the applicant and the mother and the father. It does not, however, demonstrate a degree of conflict between the mother and the father.
The applicant asserts that he has the capacity to meet the child’s needs. This capacity remains untested. On the applicant’s own case, he has spent very limited time with the child since July 2011. On the applicant’s own evidence, the majority of the time that he spent with the child was when the mother was present. While the applicant asserts that he was at times the child’s primary care giver, his own evidence was that the child, at all times, lived with the mother, and the applicant and the mother did not live together. The applicant in his submissions maintained that he “supported” the mother in decisions made by her in relation to the child’s health, care and development.
The applicant refers to himself as the “de facto father” of the child. Given that the child has a father, with whom he lives, and given the nature of the relationship that the applicant has had with the child, for the applicant to continue to assert that he is the child’s “de facto father”, gives the Court concern. This suggests a lack of insight on behalf of the applicant in failing to understand how the child may be potentially confused and conflicted by the applicant maintaining that he is a “father” of the child, when the child lives with his biological mother and father as an intact family unit. Indeed, the applicant’s evidence is that when the applicant last spoke to the child on Skype in January 2013, the child indicated to him that the child’s father (with whom the child lives) does not like it when the applicant’s name is mentioned in their household. Despite himself being aware of the difficult position that this puts the child in, the applicant continues to see himself as the “de facto father” of the child and seeks to have an ongoing involvement with the family, in order to develop a relationship with the child.
The applicant concedes that the father is a (occupation omitted) and had given the mother advice on how to deal with the child’s illnesses and, further, the applicant says that he was “happy to take the advice of a (omitted) in these situations”.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
There are no other matters relevant to the Court’s determination with respect to the child under this factor.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
During the child’s early years, the relationship between the child’s parents was what which could colloquially be described as being “on and off”. However, since July 2011, the respondents have lived together as husband and wife with the child. Since this time the respondents and, in particular the mother (as conceded by the father), have been the primary caregivers for the child.
Apart from the applicant saying that the mother has failed to recognise the attachment between himself and the child and failed to show an insight to the effect of her actions in withholding contact between the applicant and the child, there is no evidence that the parents have not demonstrated appropriate attitudes to the child and to their responsibilities of parenthood.
The attitude of the applicant is not a relevant consideration under this factor.
(j) any family violence involving the child or a member of the child's family;
This factor does not apply to this child.
(k) If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This factor does not apply to this child.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The respondents are opposed to any orders being made in the applicant’s favour. The respondents live together as husband and wife with the child. Weight is attached to that in support of the respondent parents’ position.
The applicant concedes that the mother does not wish to be involved in effecting parenting arrangements with him and suggests that, in those circumstances, “all correspondence can simply remain between [the father] and [himself] or a third party”. Further, while the applicant did not seek any specific time/contact orders, he did state in his affidavit that monthly visits and fortnightly Skype increasing as the child becomes more independent, would be ideal from his point of view. This would have little prospects of working in reality given the mother’s primary care position and the respondents’ clear opposition to any continuing involvement between the applicant and the child. Weight is attached to that in support of the respondent parents’ position.
The Court accepts that if the proceedings continued they would be plainly burdensome for the mother and the father and, potentially, a distraction for the child. Weight is attached to that in support of the respondent parents’ position.
(m) any other fact or circumstance that the court thinks is relevant
The applicant in his submissions asserted that:
a)The mother and child were welcomed into his family;
b)The mother and he had over the period September/October 2007 to June 2011 maintained sexual relations;
c)The mother had stated to him that she and he had a deep spiritual bond that would never be broken and that the happiest time of her life was with him;
d)The mother and he had discussed reconciling, even after the mother had returned to be with the father;
e)The mother had been protective of “their relationship” in regards to the father knowing about it;
f)The mother, when she commenced a relationship with him, had no nuclear family outside of him and that it was his love that had held them together; and
g)The mother in June/July 2011, had accused him of not loving her “authentically”.
The respondents are living together with the child as a family unit. The respondents are the child’s biological parents. The Court accepts that it would be potentially destabilising to the relationship between the mother and the father to have the applicant, given the relationship he asserted (as set out in paragraph 88 above) with the mother, continue to maintain contact with the child, which would necessarily engage both parents (or potentially other persons) in facilitating that.
The applicant did not seem to appreciate that his submissions record that in February 2013 he sent an email to the mother about his desire to be involved in the child’s school, development and learning, “just as it was” when the mother and he were together (emphasis added). This did not appear to evidence any reflection by the applicant on the changed position now, given that the mother and the father are back together and are in a continuing relationship. The applicant must accept that things are not as they once were.
Mr Thexton argued that there was no evidence of any conflict between the applicant and the mother. In other words, this case could be distinguished from cases where there were high levels of conflict between parents and grandparents. He submitted that there was no evidence that the mother and the applicant would not be able to “get on”. Nevertheless, even on the applicant’s own evidence, he accepted historically that the mother had had “issues committing to” him and he believed this was “partly to do with [the father] as well as her own fears and beliefs about relationships”. The applicant said that the mother would “constantly remind [him] that she was going to see it through with [the father] (despite [the father] still living in Sydney and despite [his] best efforts to save the relationship)” and that this was “an extremely emotional time and one that [he] could not continue if [he] was to maintain [his] own sense of self-worth”. Further, the applicant said that in conversations with the mother, she “was still asking for advice about [the father]” and his “only advice was to listen to [your] heart, not what you think”. The applicant stated that the mother had accused him of not loving her “authentically”. The applicant responded “being friends is inauthentic given she had already said we were soul mates and … were planning on building our own family unit together”.
Given that the child lives with the mother and father and they are his primary care givers, the Court accepts that it is not now in the child’s best interests to facilitate a relationship with the applicant who is a third party and not a parent, when that relationship has the potential to destabilise the existing relationship between the child’s biological parents, particularly having regard to the objects and principles of the Act. Significant weight is attached to that view in support of the respondent parents’ position.
The Court is satisfied that it is not in the child’s best interests to interfere in the way that the respondent parents, as the child’s parents, are parenting their own child in the context of an intact family unit.
Accordingly, weighing up, on the one hand, the parents’ adamant opposition to the applicant having any ongoing relationship with the child; their joint exercise of parental responsibility in not wanting the applicant to have such a relationship; the very limited relationship between the applicant and the child since July 2011, with the applicant spending no time with the child between June 2011 and January 2013 (save for 1 hour), limited time in the first half of 2011 and only 2 weeks in 2010; the potential for ongoing conflict and the potential risk that the applicant’s proposal has to the mother’s relationship with the father and the effect that that risk may potentially have for the child; and, on the other hand, the potential benefit to the child in having an ongoing relationship with the applicant; the Court is satisfied that the former matters substantially outweigh the latter.
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the applicant’s application should be summarily dismissed as having no reasonable prospects of success and the Court will so order.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs, subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something which should be addressed after judgment is delivered. Both parties agreed that any application for costs should proceed on the basis of written submissions. On that basis, the Court proposes to give the parties 28 days in which to make any application for costs (including any written submissions).
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 14 November 2014
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Summary Judgment
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Costs
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Procedural Fairness
5
5