Lancaster and Lancaster and Anor

[2019] FCCA 1354

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANCASTER & LANCASTER & ANOR [2019] FCCA 1354

Catchwords:
FAMILY LAW – Parenting – paternal grandmother’s application for time with the children – respondent parents’ application for summary dismissal – reasonable prospect of success – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.45A(2), 60B, div.12A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Stativa & Stativa [2015] FamCAFC 170

Applicant: MS LANCASTER

First Respondent: MR LANCASTER

Second Respondent: MS [A] LANCASTER

File Number: DGC 78 of 2019

Judgment of: Judge Mercuri

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Dandenong

Delivered on: 18 April 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondents: Mr Gates

Solicitors for the respondents: Julie Taylor

ORDERS

1. The initiating application filed by the applicant paternal grandmother on

   
   

   15 January 2019 be dismissed pursuant to section 45A(2) of the

   
   Family Law Act 1975

   (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondent’s costs fixed in the sum of $4,482.

AND THE COURT NOTES THAT:

(A)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 78 of 2019

MS LANCASTER

Applicant

And

MR LANCASTER

First Respondent

MS [A] LANCASTER

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the paternal grandmother for parenting orders in relation to two children [X] born … 2010 and [Y] born … 2013 (“the children”).  The parents of the children are the respondents in these proceedings.  They oppose the application and have sought that the court exercise its power to summarily dismiss the paternal grandmother’s application. 

3. By way of background, I note that the paternal grandmother represented herself in these proceedings.  At the commencement of the proceedings she was asked whether she had taken the opportunity to speak to a duty solicitor, and she responded that she did not need to do so.  By her application filed on 15 January 2019, the paternal grandmother seeks both final and interim orders in the following terms:

   a)that the children live with the respondents; and

   b)that the children spend time and communicate with the paternal grandmother and uncle as follows: 

   i)once each alternate Friday from 4:00pm until 7:00pm;

   ii)by telephone on Wednesdays from 6:00pm until 6:30pm;

   iii)at least two sleepovers in a month; and

   iv)involvement in school functions and activities as otherwise agreed. 

4. She also seeks orders that the paternal grandmother and the children’s uncle are allowed to communicate and spend time with the children and that the father and mother facilitate communication. 

5. The paternal grandmother’s application is supported by an affidavit in which she relevantly stated that she had spent time with the children on two occasions in 2018, once in February 2018 for a sleepover from 6:00pm on Friday to 9:00am on Saturday, and then again for three and a half hours in September 2018. 

6. She also states that she spent time with the children on four occasions on a Saturday morning for one hour and a half between 7:30am and 9:00am, although she does not identify when these sessions occurred, and on five occasions for Friday night dinner on the first Friday of each month, although again she does not identify when those sessions occurred. 

7. The paternal grandmother also asserts in the affidavit filed in support of her application that in 2010, the second respondent, being the children’s mother threatened that if she wanted to see her grandchildren she must have her son, Mr B, placed in a home and left there. 

8. She also attests to the fact that the children and her son, Mr B, all enjoy each other’s company. 

9. The first and second respondents have also filed affidavits in support of their response in which they seek that the paternal grandmother’s application be dismissed.  At this preliminary stage of the proceedings, none of the affidavit material has been tested and therefore, to the extent that there are issues in dispute arising from that material, the court cannot make factual findings.  There does not appear to be any controversy however, over the fact that the first and second respondent are the parents of the children and they remain in a relationship with each other. 

10. The respondents seek an order under section 45A(2) of the Family Law Act 1975 (Cth). They also rely on the court’s power under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth). Section 45A(2) relevantly provides that the court may make a decree 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 proceedings; and

    b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings. 

11. Section 45A(3) then goes on to relevantly state that for the purposes of this section, a defence or proceeding or part of a proceeding need not be hopeless or bound to fail to have no reasonable prospect of success. Rule 13.10 also relevantly provides that the court may dismiss generally or in relation to any claim for relief in the proceeding, if the court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

12. The court’s power to summarily dispose of an application in the manner sought is one which, of necessity, needs to be exercised cautiously.  The Full Court of the Family Court considered these issues in the decision of Stativa & Stativa [2015] FamCAFC 170 in which it was noted at paragraph 8:

    The power to summarily dismiss an action must be rarely and sparingly used.  The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi and adopted the articulation of the principles of Kirby J in Linden v the Commonwealth which may conveniently be summarised thus:

    ·It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used; 

    ·The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;

    ·That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;

    ·If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;

    ·Where, notwithstanding a defect in the pleadings, if it appears a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and

    ·the “guiding principle” is doing what is just.  Kirby J said… ‘if it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.’

13. In considering the respondents’ application for summary dismissal, it is important to consider the nature of the paternal grandmother’s application and what she would need to establish to succeed in her claim.  In doing so, it is important to have regard to the particular nature of parenting proceedings under the Family Law Act 1975 (Cth). Such proceedings are not strictly inter partes proceedings. Although the proceedings will generally have an applicant and a respondent or, in this case, respondents, the court’s task is to determine what is in the best interests of the children that are the subject of the proceedings rather than simply determine the legal rights and obligations of the parties themselves. 

14. Part VII of the Family Law Act 1975 (Cth) deals with children’s matters. Section 60B(1) sets out the objects of that part and section 60B(2) relevantly sets out a series of principles underlying the objects of that part. Relevantly, section 60B(2)(b) provides that except where it would be contrary to a child’s best interests, children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents or other people significant to their care, welfare and development such as grandparents and other relatives.

15. Elsewhere in Part VII, the Family Law Act 1975 (Cth) recognises that in considering the child’s best interests, it is appropriate to have regard to the nature of a child’s relationship with, among others, the child’s grandparents. It is clear that the court has the power to make orders in the terms sought by the applicant paternal grandmother. It is also clear that in determining what parenting orders to make, subject to considering the statutory pathway, the court has a very broad discretion. Ultimately, the court must be guided by what is in the children’s best interests.

16. Division 12A sets out a series of principles which ought to guide the court in child-related proceedings. Relevantly, Principle 1 provides that the court is to consider the needs of the child concerned and the impact that the conduct of proceedings may have on the child in determining the issues. To succeed in her claim, therefore, the paternal grandmother must satisfy the court that it is in the children’s best interests to spend time with her and, importantly, at times determined by her contrary to the wishes of both parents including the son of the paternal grandmother, both of whom have expressed concerns about the children’s safety in the paternal grandmother’s care.

17. The paternal grandmother would also have to convince the court that it is in the children’s best interests for the orders sought to be made in circumstances where the father, who suffers from post-traumatic stress disorder, has indicated that these proceedings have triggered his mental health issues which had previously been somewhat controlled.  It is against this background that the court must consider the prospects of the paternal grandmother persuading the court that it is appropriate to make orders in the terms sought. 

18. It is also against this background that the parents’ application to summarily dismiss the paternal grandmother’s application must be considered.  It was submitted on behalf of the parents that the paternal grandmother’s case does not have any reasonable prospects of success given:

    a)the minimal role that she has played in the children’s lives to date, which is evident on the basis of her own affidavit material;

    b)the father’s evidence in his affidavit about the fractured relationship that he had with the paternal grandmother growing up as well as the father’s evidence that he suffers from mental health issues which have been exacerbated by the initiation of these proceedings; and

    c)the concerns about the risks posed by the paternal uncle and, importantly, the paternal grandmother’s refusal to acknowledge these risks. 

19. I consider that there is merit to the parents’ application for summary dismissal.  Whilst in most parenting cases it would be difficult to entertain an application for summary dismissal at such an early stage and without proper exploration of the evidence and the issues, this case is one which, in my view, does not have reasonable prospects of success.  On the paternal grandmother’s own case, she has had very little contact with the children growing up. 

20. This is not a case of a grandmother who has had a significant role in the welfare and development of children which has come to an end as a result of a breakdown in the parental relationship.  The parents who remain in a committed relationship with each other both have concerns about the paternal grandmother spending time with the children as per her proposal.  Moreover, even on the basis of the paternal grandmother’s own affidavit, the parents have, notwithstanding these concerns, facilitated time between the children and the paternal grandmother. 

21. The paternal grandmother’s affidavit also attests to difficulties between her relationship with the mother and the fact that the mother has raised concerns with her about the children spending time with Mr B.  The father annexed to his affidavit a psychological assessment which is also supportive of the father’s application for summary dismissal.  It is evident from the paternal grandmother’s own affidavit that although she has only recently started to spend time with the children, the parents have facilitated some time with her. 

22. This evidences an acknowledgement by the parents that it is in the children’s interests to have some form of relationship with the paternal grandmother, although this has been limited. 

23. Having regard to all of these circumstances and to my obligation to consider the impact of proceedings themselves on the children, including indirectly given the adverse impact that the litigation is having on the children’s father in this instance, I am satisfied that the paternal grandmother’s case has no real prospects of success.

24. I therefore grant the orders sought and dismiss the paternal grandmother’s application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     18 April 2019