Penn and Haughton and Anor
[2013] FCCA 1941
•1 November 2013
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 |
| 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
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
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.
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.
This is a sad case. Unfortunately, many cases of this nature come before the courts on too regular a basis.
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.
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.
I have read all of the documents as well as the helpful written submissions provided by the legal representatives for each party.
The power of the court to summarily dismiss an application is set out in section 17A of the Federal Circuit Court Act 1999. So far as it is relevant to this case, that section provides in subsection (2):
The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that pat of the proceeding.
Subsection (3) provides:
For the purposes of this section, a defence or a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
And subsection (4) says:
This section does not limit any powers that the Federal Circuit Court has apart from this section.
Rule 13.10 of the Federal Circuit Court Rules 2001 reflects section 17A, and reads 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)if a proceeding or claim for relief if frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the court.
The approach to be taken when considering an application pursuant to section 17A is to be similar to that undertaken by the Federal Court pursuant to section 31A of the Federal Court of Australia Act 1976, which is in virtually identical terms.[1] This provision was considered by the High Court in Spencer v Commonwealth of Australia.[2] In that case, Justices Hayne, Crennan, Kiefel and Bell held the power to dismiss an action summarily is not to be exercised lightly but full weight must be given to the expression “no reasonable prospect” as a whole.
[1] Latorre v Maddock (2012) 47 Fam LR 206 [8]-[10]
[2] (2010) 241 CLR 118
Their Honours said, paragraph [58]:
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 of all of the cases in which it cannot be said that here 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………
Their Honours went on at paragraph [59] to say:
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 section 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.
At paragraph [60]:
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
The respondents’ argument for summary dismissal can best be summarised as in the circumstances of this particular case, the paternal grandmother has no reasonable prospect of successfully prosecuting the proceeding. It has not been submitted that her application is in any way frivolous or vexatious, or that it is an abuse of the process of the court. The emphasis of the respondents’ submission is that at the end of the day the grandmother has no reasonable prospect of success.
The grandmother, who is the applicant for parenting orders, argued however, that on the contrary if the matter was permitted to proceed to final hearing, or at least so far as to the preparation of a full family report, she would establish that it’s in the best interests of these children to spend time with her. She argued that the children would be denied the benefit of a relationship with the extended paternal family if the case was summarily dismissed, including the potential to develop a relationship with their half-brother who is 16 years of age.
The solicitor for the paternal grandmother referred to the decision of Dayley & Abram,[3] where his Honour Justice Johnson ordered a child to spend time with the paternal grandparents even though the mother was implacably opposed to that contact. In that case, however, the factual circumstances were quite different to these in that the father had died.
[3] [2012] FamCA 497
The court was taken to the section 60CC factors by the paternal grandmother to show that the prospect of her successfully prosecuting her application is such that it would not warrant any dismissal at this stage.
Because I am delivering an extempore decision in a busy duty list, I do not intend to repeat all of the submissions, but I have had regard to the section 60CC provisions referred to in the written submissions by both solicitors.
In Church & Overton,[4] Justice Benjamin considered the appropriateness of making orders for children to spend time with their grandfather against the wishes of their mothers. His Honour did so in the context of a contested hearing rather than an application for summary dismissal.
[4] [2008] FamCA 953
In his judgment, his Honour considered the objects and principles that underlie Part VII of the Act in relation to parenting orders. The objects and principles are these:
·That both parents have a meaningful involvement in their children’s lives;
·that the children are protected from physical or psychological harm;
·that the receive adequate and proper parenting; and
·that the parents fulfil their duties and meet their parental responsibilities.
Section 60B, at subsection (2), sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests, the principles are:
·children have a right to know and be cared for by both their parents;
·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;
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture.
His Honour went on to consider the following question:
Do grandparents have special entitlements to see or communicate with grandchildren?
His Honour answered the question this way:
[24] The Family Law Act places parents in a special position in respect to their children. The objects and principles clearly set out their importance. The primary consideration, section 60CC, subsection (2) of the Act, weight the importance of a meaningful relationship between child and parent against the need to protect the child from harm.
[25] The Family Law Amendment Shared Parental Responsibility Act 2006 amended various sections of the Family Law Act in relation to parenting orders, and made explicit reference to grandparents.
[26] On face value, the amended Act does not invest grandparents with a special category of rights or position over and above other people who might be significant to a child’s care, welfare and development such as grandparents and other relatives.
[27] Grandparents are included with other relatives as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development and if that is the case and it is in the best interests of the child, then the child has the right to see that grandparent.
[28] The Explanatory Memorandum accompanying the 2006 amendments explained as to section 60B(2). “Paragraph 60B(2)(b) is amended to specifically refer to children having a right spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA report, and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.”
[29] The legislation specifically empowers a grandparent to apply for a parenting order……
[30] Parenting orders can be made in favour of grandparents, who are given a specific inclusion in section 64B of the Act. This is not surprising as sometimes grandparents are the sole stable feature in the lives of some children.
[31] Grandparents are also referred to in section 65G of the Act in which the legislature imposes some conditions upon a Court if a residence order is to be made otherwise than in favour of a parent, grandparent or other relative of the child. This gives grandparents some special significance in terms of parenting.
His Honour then went on, at paragraph 39 to say:
The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of the child or children should be informed by the family dynamics between the children’s parents and grandparents. In that regard, the views of the parents are significant, but not necessarily determinative.
His Honour then considered the right of parents to make decisions about their children. His Honour said:
[40] The Act set out principles that parents are expected to share duties and responsibilities for the care, welfare and development of their children. The Act provides that parents should agree about the future parenting of the children.
[41] The Act makes parents endeavour to resolve parenting issues themselves. To do this, they must generally undertake some alternative form of dispute resolution before commencing Court proceedings. When parenting orders are made, parents can usually make changes to those orders by agreement.
………
[43] Where parents jointly, or if a sole parent solely, have a strong view in relation to the parenting of their children, Courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that Courts take over the role of parents.
His Honour went on to say at paragraph 56:
Section 60B(2) of the Act provides the principles underlying the objects in parenting proceedings which are expressed in section 60B(2)(a) through to (e). These are expressed in the negative in that they apply “except when it is contrary to the child’s best interests”. This means that parents ought to be left to parent their children according to those objects, unless it is established that it is not otherwise in the best interests of a child.
[57] 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.
………
[59] 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. A Court should only intervene in such decision-making in a cautious, careful and thoughtful manner, and consider whether a better approach is to make no order at all.
[60] That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where parents are unwilling or unable to care for them.
With respect, I agree and adopt the views of his Honour. In Cole & Collier,[5] I made the following findings in relation to a case where a maternal grandmother had brought an application merely to send cards to children and to obtain information about them. I found that:
The child does not have any relationship with the maternal grandmother and the parents have formed the view that it would not be in her best interest to commence a relationship with the grandmother. In making such a decision, the parents have exercised their parental responsibility. This is a decision that they have come to together. A Court must be concerned when considering an application by a grandparent to become involved with a child, even in such a distanced way as proposed by the applicant’s amended application, to ensure that parents exercising their parental responsibility in appropriate and child focused ways do not have that responsibility undermined by unnecessary interference from the Courts.
[5] [2010] FMCAfam 1112
In this particular case, although there are factual issues in dispute between the parties, it is not disputed that the children have not had a relationship with their grandmother since June 2010. Given their very young ages, I am satisfied they do not have any relationship with her. There is no dispute that the parents have made a decision together to oppose the grandmother’s time. In doing so, they have jointly exercised their parental responsibility.
The family consultant who saw the parties observed:
While counselling for this family may assist, I am not optimistic of the success of the process if Mr and Ms Haughton are so opposed to having anything to do with Ms Penn.
She also observed:
I am not confident that the mother would be willing to comply with orders that saw the children spending time with Ms Penn, even in a supervised situation.
I also note the family consultant’s further observation:
Based on the limited information available to me at the time of preparing this memorandum, it is evident that X, Y and indeed Z are missing out on the information and the potential relationships of extended family that would assist them in creating a more comprehensive view of self, who they are, and what their family heritage is about and how they fit in.
There can be no doubt that a sense of identity is important for children. The family consultant considered that a full family report would be of assistance. This may be the case if the matter was to proceed to trial.
Litigation is not the answer for these children. The consequences of ongoing litigation has the very real prospect of driving the wedge between the parents and the grandmother even further which will not benefit the children.
When I weigh up: the fact that the children do not have a relationship with their grandmother; the extent of the parents’ opposition to starting such a relationship; their joint exercise of parental responsibility in not wanting the children to have that relationship; and the potential for ongoing conflict; with: the potential benefit to the children of developing a relationship with the grandmother and extended paternal family; and the benefit to them of having a fuller understanding of their identity, I am satisfied that the former significantly outweighs the latter.
For these reasons I am not satisfied the grandmother has any reasonable prospect of successfully prosecuting her application and I would summarily dismiss her application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 21 November 2013
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