Paget & Paget

[2021] FCCA 1913

FEDERAL CIRCUIT COURT OF AUSTRALIA

Paget & Paget [2021] FCCA 1913

File number(s):	DGC 89 of 2021
Judgment of:	JUDGE BURCHARDT
Date of judgment:	5 August 2021
Catchwords:	FAMILY LAW – application for summary dismissal – application by paternal grandparents to spend time with 10 and 13 year old children – relationship between grandparents and parents (particularly the father) extraordinarily bitter – deeply concerning hate-filled messages ostensibly prepared by children to grandmother – consideration of objects in s.60B Family Law Act – impossibility of fomenting relationship with the grandparents in the face of the disturbing position adopted by the parents – substantive application summarily dismissed.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Spencer v Commonwealth of Australia [2010] HCA 28
Number of paragraphs:	39
Date of last submission/s:	5 August 2021
Date of hearing:	5 August 2021
Place:	Dandenong
Solicitor for the Applicant:	Mr Phaedonos
First Respondent:	The First Respondent in person
Second Respondent:	The Second Respondent in person
Solicitor for the Independent Children's Lawyer:	Ms Lim

ORDERS

DGC 89 of 2021

BETWEEN:

MR PAGET AND MS PAGET

Applicants

AND:

MR B PAGET

First Respondent

AND:

MS HAMPTON

Second Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.Pursuant to section 45A of the Family Law Act 1975 (Cth), the initiating application filed on 13 January 2021 be dismissed.

2.The order appointing the Independent Children’s Lawyer be discharged.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

JUDGE BURCHARDT:

1. The formal history of this matter commenced on 13 January 2021 when the applicant grandparents lodged an application with the Court.  They sought that the two children with whom we are concerned spend time, including alternate Saturdays to Sundays with them.  The two children are X, who was born in 2008 who is not the biological grandchild of the grandparents, but rather is another child of the mother with whom the grandparents’ son lives, but who has been treated as a child of the family because she has been with what are now, in effect, her parents since a very young age.  The other child with whom we are concerned is Y, who was born in 2011. 

2. On 24 May 2021, a Response was filed by the parents, and that sought that there be no time spent by the grandparents with the children whatever.  A Notice of Risk filed contemporaneously says a number of things, but relevantly says, at paragraph 34:

   “THE CHILDREN HAVE EXPRESSED THEY DO NOT WISH TO PURSUE
   A RELATIONSHIP WITH MR PAGET AND MS PAGET AND ARE SCARED WHEN THEY OBSERVE MR PAGET AND MS PAGET FIGHTING ALL THE TIME AND BECOMING ABUSIVE OF THEM.”

   
   

3. On 31 May 2021, I set this matter down for hearing of the application by the parents for summary dismissal of the grandparents’ claim pursuant to section 45A of the Family Law Act 1975 (Cth) (“the Act”). It had become apparent during the interlocutory hearing before me that that, in substance, was what the parents, who are self-represented, were seeking. Section 45A relevantly reads:

   (1)The court may make a decree for one party against another in relation to the whole or any part of proceedings if:

   (a)the first party is prosecuting the proceedings or that part of the proceedings; and

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

4. In subsection (2), the converse is provided:

   The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

   (a)       the first party is defending the proceedings or that part of the proceedings; and

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

5. Pursuant to subsection (3), it is provided:

   For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)       hopeless; or

   (b)       bound to fail;

   to have no reasonable prospects of success.

6. This section was considered authoritatively by the High Court in the case of

   
   Spencer v Commonwealth of Australia

   [2010] HCA 28. I note that the Dandenong Registry does not have the up-to-date CLRs, so I can only give the media neutral citation. The High Court was considering section 31A of the Federal Court Act, which is in identical terms for these purposes with section 45A of the Act. In the joint judgment of French CJ and

   
   

   Gummow J, at [24], their Honours said:

   The exercise of powers to summarily terminate proceedings must always be attended with caution.  …

   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.

   More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

   Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

7. At [25], their Honours continued:

   Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success.

8. In the same case, the plurality of Hayne, Crennan, Kiefel and Bell JJ said at paragraphs

   
   

   [50]-[52], relevantly:

   Consideration of the operation and application of s 31A of the Federal Court Act must begin from consideration of its text.  So far as relevant to this matter, s 31A provides:

9. And they set out the provisions of the section, which are identical to the ones I have read out.  They went on:

   Two aspects of these provisions are to be noted. 

   51.      First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added).  The choice of the word “reasonable” is important.  If
   s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this.  The English rule speaks of “no real prospect”;  s 31A speaks of “no reasonable prospect”.  The two phrases convey very different meanings.

   
   

   52.      Second, effect must be given to the negative admonition in subs (3) that
   a defence, a proceeding or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail".

   
   

10. At [58] and following, the plurality continued:

    How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes,82 as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

    [59]     In many cases where a plaintiff has no reasonable prospect of prosecuting
    a proceeding, the proceeding could be described (with or without the addition
    of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”,
    in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

    [60]     Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is
    “no reasonable prospect” of success.

11. In this case, I propose to traverse the materials filed by the parties in some detail.  In support of the initiating application, Ms Paget, the grandmother, filed an affidavit.  I have regard to the text of it, but what I propose to read out are certain extracts from the various annexures.  The first annexure from which I read out is a document headed Application and Summons for an Intervention Order in which the father, in the context of seeking an intervention order against his mother, relevantly said:

    THROUGHOUT MY ENTIRE LIFE I HAVE BEEN TORMENTED BY MOTHER AND HER NARCISSISTIC BEHAVIOUR.  I SUFFER FROM PTSD AND FOR THIS REASON, I HAVE ALWAYS TRIED TO SHIELD MY CHILDREN FROM HER AND HER ABUSE.  I HAVE NOT SEEN THE RESPONDENT IN PERSON FOR YEARS FOR THIS EXACT REASON.  THE RESPONDENT HAS PATTERNS OF ABUSIVE BEHAVIOUR.

12. I move on now to annexure 7, which is a number of messages passing between the parties and passing between the children, and ostensibly, the parents.  On the first page of the annexure, which is an email from Ms Paget to Mr B Paget, the email relevantly says:

    If you never want to see me or hear from me again, so be it there is nothing I can do.  But I will not die not trying to make things right.

    The girls will be able to see me when they are sixteen and I will be there waiting with a book of my memories and will celebrate every year I am forced not to see them.

    I do love you and miss you, Family is everything to me.  I have not contacted the girls as I do not want to put them in an uncomfortable situation where X was too scared to say anything to Mr Paget at the sports.  How cruel, you would have thought we were there to kidnap them.

13. Several pages further over, as part of a message which I think commences on 15 November 2017, at 15.27, it is a response from the father in these terms:

    I still cant believe at the age of 27 I am still putting up with this behaviour from you.  The reason that I was never home was because of you.  My father is the one that has always done right by me and is one person who is always welcome in my life and my home.

14. The next message to which I refer is a message ostensibly sent by Y to the grandmother on 26 July 2018.  I point out that Y having been born in 2011 was, at this time, slightly under seven years old.  The text of some of these messages is grossly offensive and disturbing, but there is no means of arriving at this judgment without reading out the material, offensive and distressing as it will be.

    To Ms Paget you are a stupid dub dick you are ugly lady you are a stupid mall … [sic]

15. I think that means “mole”.

    … and I hate you so much dont Rowen my Birthday coming up from Y I will all ways hate you i hope you die. [sic]

16. The next message, also from Y on 22 October 2018, by which time of course she was just seven goes:

    I hate you so much I hope you and Mr C die.

17. Mr C is the paternal uncle.  A further message sent on 10 December 2018 by Y, again

    
    

    – I repeat, only seven years old:

    hairy old bum hole!!!!  Stop getting dog to call.  It’s me writing because I really hate u and can’t wait until you die.  It’s not my mum and dad like u would hope. [sic]

18. The next message on 24 December 2018, from Y:

    Ms Paget I hope you have a terrible Christmas.  I hope you and Mr C die soon and get no presents and dog to.  You have been bad for so long to us and I know you don’t care because you didn’t even come to court.  You are a stupid dumb bitch who thinks that me and X will want to see you when we were older.  But no we don’t even want to see your ugly old face again.  Have fun with your only child left bitch. [sic]

19. I will return to what is to be made of these messages, but I am afraid we are not quite finished.  On 24 February 2019, a further message from Y reads:

    I cant wait until the day u die.  I hope Mr C does to.  Dad hates u for sending him an email.  He has asked use not to and u never respect his wishes.  You do what u want because u feel sorry for yourself.  U cant take back the letters u wrote, the post about your favourite son and everything else.  You are trying to get Dad back and split our family up which won't happen after how cruel and evil u have been, silly lady.  You are not family Ms Paget, you are a mugwart.  U will never be forgiven. [sic]

20. The next email is – I am not referring to all of them, I hasten to make clear – but the next one is 26 July 2019.  From Y, who by now of course is coming up towards 8:

    I still hate you Fuckn bitch.  Your a fake mother fucker and a piece of shit.  You dont have a heart and are the worst ever.  I have been looking up things on the internet about horrible nasty grandmas and I have found lots of things that remind me of your black soul.

    Tell Mr C he will never be able to make us do his dirty feet again disgusting pig.
    I really hope you told Mr Paget to piss off and is not welcome to our house ever again.  If he comes he will be told to go.  My parents will record him and go to court if he does. 

    
    

    You were spoilt with your own money mole.  How could it be good when you have
    a junkie son Mr C. 

    
    

    X and I have letters for you about our feelings which we hope you will get to read one day.  We do not miss you at all.

    Every new school program we have to give the court order and its embarrassing that its all your fault.  X is asking mum and dad if she will have to go back to court for another order when she is 16 because of you and your shit.  Heres some pictures
    of X and I. [sic]

    
    

21. Dear me.  On 25 March 2020 the father sent his mother an email:

    Stop your emails and your little tick and flicks to make yourself feel better & to make yourself believe you are doing everything you can to get in contact with me.

    You are a disgrace & want nothing to do with you- the only distancing I will be doing is making sure your not around me and my family.

    You are one of the most horrible human beings I have ever met & are one of the best cases I have seen as a narcissist, you bring the worst out of me and my family. 

    Honestly do yourself a favour and literally go away.  I have told you on many occasions I want nothing to do with you or the rest of your family.

    Love?  The only love you have is for yourself and only you.  Now go make people feel sorry for you, you sad sad woman.

    Don’t live with regret it catches up with you?  The only regret I have in life is being related to you and having the same last name, you aren’t even in my thoughts or my daughters thoughts.  they will never speak to you or the rest of your family again, nor do they every want anything to do with you- you dont even come up in conversation.

    How does that sound to you narcissist?  Jump on facebook and let everyone know how bad you have it.

22. The next email, which is as recent as 5 November 2020 is from Y who, of course,

    
    

    by now, is 9:

    Today in school I was doing Auslan and they were asking questions.  One of them were put your hand up if you have a grandma and grandpa.  I didn’t put my hand up because UR NOT MY GRANDMA!!!  I hate u so much.  Having u in my life was a big mistake.  How dare u think u can treat my family like they’re a piece of shit!

    What do u think u are doing that.  I will never forgive what u did to my family NEVER!  U think I still love you after the nasty things u have said about my parents.  I’ll never love you never again.  I hate u.  I dont ever wanna to see that wrinkly face again.  [sic]

23. That is the last of these distressing extracts from that particular set of documentation.  The father filed a responding affidavit with his notice of risk, and at paragraph 8, relevantly said:

    …  I had ongoing issues and a long-strained relationship with both my parents and my brother Mr C which started many years earlier.  Due to the family violence, I had experienced, I wanted to leave home as soon as I could afford to.

24. At paragraph 15 on page 5 of 22, he said:

    Mr Paget continued to visit on Y’s birthday and at Christmas time to attempt
    to provide her with gifts.  I questioned why X was not being included.  Mr Paget responded advising that he was following Ms Paget’s orders. 

    
    

25. I beg your pardon, when I was reading out these disturbing messages earlier, I missed out one from X, which I had intended to read out, which was sent on 18 February 2018, at which time, of course, she was 10 years old or just shy of 10 years old:

    Hi Ms Paget guess what grandparents day is coming up and u are not invited.  My nanny and poppy are coming J  U are not a rule grandma anymore.  A real grandma would not.  Do the nasty things u have done to our family.  Mum and dad tell us everything.  how could u say stuff about our mum on Facebook and think that its OK.  We hate u even more for doing this to our. Mum.  We learn about online bullying at school. 
    u should not be allowed online.  We are always going to. Stick up for our parents know matter what. 

    
    

    By the way u can live for that day all u want.  We won’t be having Facebook and if we did we wouldn’t be friends with any of u.  Are u just going to bully us to? 

    U don’t even have the guts to admit how much bad things u have done.  [sic]

26. Right.  That brings us further on.  Yes.  That is the end of the matters I propose to read out from the materials.  I note that the grandfather has filed an affidavit supporting his wife’s position and the mother has filed an affidavit supporting her husband’s position.  Today when the matter came on at court, the Independent Children’s Lawyer indicated that there had been no face-to-face time between the grandparents and the children for four years and informed the court that the grandparents are seeking a section 11F conference.  The father spoke on behalf of the parents.  He is seeking the dismissal of the application.  He said he had been the subject of domestic violence for 30 years and suffered from anxiety and PTSD as a result. 

27. He referred to the departmental report, which detailed an assault by his brother.  He said that there had been domestic violence by the grandparents on the children and that he still had nightmares as a result.

28. Mr Phaedonos, counsel for the grandparents, pointed out correctly in my view that much of this was not spelt out in the various affidavits filed by the parents. He pointed to the fact that the grandparents have a right to make an application pursuant to the legislation. There had been significant time in the past and the children have actually lived with the grandparents at some point. He pointed to the fact that the brother, Mr C, had been present at a visit to Town D and this appeared to have been, as it were, a catharsis in the experience of the family. The last time was enjoyed. He pointed to the fact that exceptional caution should be exercised in summary dismissal cases and referred to authority, which, however, pre-dated the introduction of the section 45A of the Act.

1. He referred to section 60B of the Act and the right of the children to have a relationship with grandparents. They just wish to recommence a relationship and are not seeking the resumption of time. They want to go to an expert to gain assistance and Ms E would be available for interviews for which they were prepared to pay on 15 September of this year. Gifts have continued to be received until August 2020 and the delay to coming to court was as a result of an understandable ignorance on the grandparents’ part that they could bring such an application.

2. Counsel for the Independent Children’s Lawyer noted that there were no views received from the children.  The grandparents have not spoken to the children and the annexures were shocking.  The further submissions in relation were made by both of Mr Phaedonos and Mr Paget did not take the matter much further, in my view. 

3. If one turns to the legislation, section 60B of the Act contains the objects of the part and the principles underlying it. First of all, the objects from section 60B(1) of the Act:

   (1) The objects of this Part 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.

4. Subsection (2):

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (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 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 the right to enjoy that culture with other people who share that culture).

5. I would make this point. Looked at in the round it is plain that the predominant and primary emphasis of the objects of the Act lays emphasis, very understandably, on the primary role of parents, although it, of course, does not exclude others. Pursuant to section 65AA of the Act, it is in an overarching sense the case that the children’s best interests are of paramount consideration. Pursuant to section 61DA, the parents are presumed to have equal shared parental responsibilities subject to certain exceptions. And section 60C of the Act, of course, is that process whereby the court works out how the best interests of the children are to be met.

6. Against that background, one comes to the particular dispute.  If any further steps at all are taken, including a section 11F set of interviews, the parents will oppose it.  They have made that plain already.  The parents will be stressed by the continuation of the court proceedings.  So much is plain.  Indeed, one would infer that the grandparents would also be stressed.  And it seems inevitable, given that the children live in the entire care of their parents and do not see their grandparents at all, although, apparently, they see family members on the other side fairly regularly, the children will be exposed to their parents’ stress. 

7. The materials filed thus far make it clear that the children have been made all too much aware of the intra family difficulties and dynamic.  The messages sent by the children to the grandparents make hideous reading.  One might feel that the message from the older child could conceivably have been composed by them.  But it seems far more probable to me than otherwise that the messages attributed to Y were not, in fact, created by her at so young an age, given their phraseology and language.  It seems to me, far more probable than otherwise that their parents created them.  Whether that is so or not, it is very confronting to read language with such an offensive adult nature as those that I had the misfortune to have to read out. 

8. One of the difficulties of this, of course, in a sense, when one takes a step back from the fray, it little matters whether these are the direct words of the children, which I doubt, or those of the parents who have put them up to it.  The fact is that it is entirely redolent of an adamantine state of mind on the father’s part.  The grandparents say that they would accept the result

   
   

   of a section 11F conference in the sense as I would infer, that if it was to the effect that the children do not wish to see them, that they will accept that. 

9. But given the children will be in the entire care of their parents leading up to any section 11F interviews and that the parents appear to have a pretty well-developed capacity to coach the children as to what to say, assuming that the children can be made to undergo the process at all, it seems entirely probable to a very high degree of satisfaction on my part that that will not produce any result other than to put the parties through the stress and strain of the interviews.  Even if I am wrong in that assumption and the section 11F recommended some form of endeavour to resuscitate the relationship, the parents will undoubtedly continue to oppose.  That will, once again, lead to the stress on the parents and the burden of court outcomes for the children.  

10. This is a case that is little short of tragic.  Relationships with parents are, in the ordinary way of things, a cornerstone of our wellbeing.  They achieve recognition, going back to the Bible.  But where the primary carers, being the parents, have what is plainly not a matter of recent invention, a very longstanding or very difficult relationship with the grandparents, even if I accepted that the grandparents’ evidence, as one has to in these interlocutory hearings, as to the past history of relatively good interaction, the fact is there has been a completely toxic relationship for a very substantial period of time.  And as I say, the father’s complaints as to the PTSD and a troubled relationship with his mother, in particular, are plainly not matters of recent invention. 

11. This is a case in which, most regrettably, I cannot make any other conclusion other than that the grandparents have no reasonable prospects of success with prosecuting their case.  It therefore follows that the application will be dismissed.  I have turned my mind to the proposition that there should be permission for cards and gifts to be sent.  But since even that very minimal form of contact has been – as it were, the door to that has been slammed shut itself.  I fear that there is no way forward there.  One would sincerely hope that the situation will ease in time.  Frankly, this court is not a welfare agency but if the children are using language of this sort at so young an age and expressing thoughts along these lines, they might well benefit from some form of therapeutic intervention.  But that is ultimately a matter for the parents.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       18 August 2021