Penn and Haughton and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENN & HAUGHTON & ANOR [2013] FCCA 1941

Catchwords:
FAMILY LAW – Children – application for summary dismissal – application by grandmother to spend time with young children – effect on parents of having to justify the exercise of their parental responsibility through litigation.

Legislation:  

Federal Circuit Court Act 1999: - ss.17A, 60B, 60CC
Federal Court of Australia Act 1976: - s.31A
Federal Circuit Court Rules 2001: - r.13.10

Latorre v Maddock (2012) 47 Fam LR 206
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Dayley & Abram [2012] FamCA 497
Church v Overton [2008] FamCA 953
Cole & Collier [2010] FMCAfam 1112

Applicant: MS PENN

Respondents: MR HAUGHTON & MS HAUGHTON

File Number: BRC 2524 of 2013

Judgment of: Judge Lapthorn

Hearing date: 1 November 2013

Date of Last Submission: 1 November 2013

Delivered at: Toowoomba

Delivered on: 1 November 2013

REPRESENTATION

Solicitors for the Applicant: Wonderley & Hall

Solicitors for the Respondents: Kennedy Spanner Lawyers

ORDERS

1. That the Application filed 4 April 2013 be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TOOWOOMBA

BRC 2524 of 2013

MS PENN

Applicant

And

MR HAUGHTON & MS HAUGHTON

Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is an application by the paternal grandmother of X, who is five, and Y, four, for them to spend time with her.

2. The children’s older half-brother, Z, who is 16 – the son of the father from a previous relationship, lives with the paternal grandmother and has a compromised relationship with the father.  The paternal grandmother is hopeful that these children would also be able to have a relationship with their brother if they were to spend time with her.  These children have not seen the paternal grandmother and their brother since the middle of 2010.  The parents are implacably opposed to the children spending time with the paternal grandmother. 

3. This is a sad case.  Unfortunately, many cases of this nature come before the courts on too regular a basis.

4. The parents have sought an order that the paternal grandmother’s application be summarily dismissed.  In support of that application they relied on the response that was filed on 9 July; the affidavit of the father that was filed on 9 July; the affidavit of the mother filed on 10 July; the memorandum from the family consultant that was released on 13 August; and the affidavit of the mother that was filed on 28 October.

5. The maternal grandmother relied on her initiating application filed on 4 April this year; her affidavits filed on 4 April, 12 August and 31 October; as well as the memorandum from the family consultant.  Further, the maternal grandmother tendered into evidence documents produced under subpoena from the police which became exhibit A1.

6. I have read all of the documents as…