Valotis & Simas
[2023] FedCFamC2F 112
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valotis & Simas [2023] FedCFamC2F 112
File number(s): MLC 10854 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – parenting – application for summary dismissal – where respondents seek summary dismissal of an application by the maternal grandmother for parenting orders Legislation: Family Law Act 1975 (Cth) ss 65C, 143(2), 143(5)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Aldridge & Keating (2009) FLC 93 – 142
Bonner & Chandler [2021] FedCFamC1A 81
Bowles & Anor & Post & Anor [2020] FCCA 3300
Church & Overton [2008] FamCA 965
Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14
Souter & Meagher & Anor [2007] FamCA 18
SPS v PL [2008] FamCAFC 16
Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 27 January 2023 Place: Melbourne Counsel for the Applicant: Mr Mellas Solicitor for the Applicant: Doyles Family Law and Mediation Counsel for the Respondents: Mr Arnold Solicitor for the Respondents: Pearsons Lawyers Pty Ltd ORDERS
MLC 10845 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VALOTIS
Applicant
AND: MS SIMAS
First Respondent
MR SIMAS
Second Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
9 February 2023
THE COURT ORDERS THAT:
1.The application for summary dismissal is dismissed.
2.The proceeding is adjourned for further Compliance and Readiness Hearing on 6 April 2023 at 11:00am.
3.In accordance with the FCFCOA Central Practice Direction – Family Law Case Management, no less than 7 days prior to the listing, each party must file and serve:
(a)an Amended Application or Response as appropriate, setting out the precise orders sought, if the most recently filed Application or Response is not current;
(b)an undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(c)a Certificate of Readiness in the approved form.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Valotis & Simas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
X is nearly 3 years old and lives with her parents who are still in an intact relationship. Her maternal grandmother seeks to spend regular time with her. X’s parents seek that the Court exercise its powers to summarily dismiss the maternal grandmother’s application.
The applicant grandmother’s case is that she had a close, loving relationship with her daughter and granddaughter and does not know why she and her husband Mr B have been cut out of their lives. She also stresses her concern that X will miss out on her being immersed with her extended family and Greek culture if the parents continue to isolate her.
The respondent parents say that the grandmother is volatile and domineering. They refer to at times the grandmother being loving but at others being manipulative and lacking boundaries. At times, the grandmother put great pressure on them, driving a wedge between the parents and criticising their parenting styles. They acknowledge that the grandmother and her husband spent regular time with X of about 20 occasions while Melbourne was in between lockdowns. The parents point out that given the period of time since X has spent time with the maternal grandmother and given her age, X does not remember her grandmother and does not have a meaningful relationship with her.
The parents refer to the enormous financial and emotional pressure they feel and their fear that their family life and their parenting capacity will be compromised if they are forced to engage with the grandmother and her husband.
LEGAL PRINCIPLES WITH RESPECT TO SUMMARY DISMISSAL
The parents counsel sought to rely on s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). However that provision does not apply to matters under the Family Law Act: see s143(5). The applicable provision is s 45A of the Family Law Act 1975 (Cth). It does not make material difference as the two sections largely mirror each other. In giving a summary judgment, the Court must be satisfied that the other party has no reasonable prospect of successfully prosecuting or defending the proceeding or part of the proceeding. The proceeding or part of the proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
There are several authorities which have addressed the matters the Court must consider when determining whether or not to summarily dismiss a matter. Kirby J’s comments at paragraph 14 of Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14 are often quoted. In that paragraph he said:
The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon’s statement of claim; and
6.The guiding principle is, as stated in O 26 r 18(2), doing what is just. 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.
The Full Court has made it clear on several occasions that the parents are not in a special position as against non-parents such as grandparents in a parenting matter.[1] Parents do not enjoy a special position as against other persons who have standing to bring an application with respect to the welfare of a child under s 65C of the Family Law Act 1975 (Cth). A parent having sole parental responsibility does not put a parent in a preferred position to non parents with respect to other parenting orders. There is nothing in the legislation that changes this position when the parents are in an intact relationship opposing an application by a non parent.
[1] See for example, Aldridge & Keating (2009) FLC 93 – 142 and Valentine & Lacerra & Anor [2013] FamCAFC53
The parents’ counsel drew attention to a single judge decision, Bowles & Anor & Post & Anor [2020] FCCA 3300. This case does not assist as it is clear that Valentine & Lacerra & Anor was not brought to the judicial officer’s attention. The father, who is a commercial lawyer did a considerable amount of research and referred to many single instance decisions that rely heavily on Church & Overton [2008] FamCa 965. I am troubled by the fact that as with Bowles’ case it appears that judicial officers were not referred to Valentine despite that being a 2013 Full Court decision. Given this I will set out what the Full Court said about Church :
42. 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. The presumption of shared parental responsibility only applies to parents. In Souter & Meagher & Anor [2007] FamCA 18, Cronin J said (emphasis added):
132. Whether it was a legislative oversight or not, it is curious that the provision is limited to parents. This is particularly so in a case where a child such as R has been effectively parented by his great grandparents for the major portion of his life. It is quite clear in the additional considerations in s 60CC(3)(b), (d) and (f) that persons other than parents and in particular grandparents are treated as significant participants. However, the presumption in relation to the question of sharing parental responsibility is limited to the parents. That does not mean that a court cannot make an order for a relative to have parental responsibility (See s 64B(2)(c)). Counsel for the independent children’s lawyer pointed to the fact that the principle objects of Part VII refer to parents and that it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with that proposition.
In Bonner & Chandler [2021] FedCFamC1A 81 Austin J found that the magistrate had fallen into error when dismissing the grandmother’s application to spend time with the grandchildren, because the parents, who remained in an intact relationship, opposed it. Rather, the application should have been considered on its merits. At paragraph 24 Austin J observed:
24. The magistrate said the objects and principles found within s 60B of the Act had been taken into account and, further, the paramountcy principle (ss 60CA, 65AA) was applied. It was not contended in the appeal the magistrate had not done as he said. However, the magistrate also said the primary and additional considerations under s 60CC of the Act had been taken into account, but then curiously said those factors had “little or no relevance”. While not all factors prescribed by s 60CC of the Act are relevant in every case, it is mandatory to consider those which are relevant to the case at hand.
When determining an application for summary dismissal, the Court must consider the evidence of the person resisting the summary dismissal application at its highest. This is qualified in parenting matters as the Court is still required to consider the best interests of the child. [2]
[2] See SPS v PL [2008] FamCAFC 16
THE PARTIES’ CASES
In both her initiating application filed on 29 September 2022 and in her amended application filed 22 November 2022, the grandmother seeks to spend regular time with X. She does not seek an order that would interfere with the parents exercising parental responsibility. In her first application, she was seeking to spend time one day a week until X starts school. Once X starts school she would spend time each Saturday during school terms and Saturdays overnight during holidays, as well as special occasions. The grandmother’s counsel said that the grandmother initially sought weekly time because that is what she had been enjoying, but she has now made a more realistic proposal in her amended application. That may be so in a case where the mother was absent and the grandmother was the only connection to the maternal family or where there are risk concerns about the parents. These factors are not present here, rather the time grandmother seeks is of such a frequency that this would significantly interfere with the parents’ family time including spending time with extended family on the paternal and maternal side (the maternal grandfather’s family). It is common to see applications by grandparents seeking time arrangements of a frequency and duration that is akin to the type of time another parent might seek. Often the orders sought are such an overreach that in the circumstances they only serve to heighten conflict.
The parents’ case is also that the grandmother has engaged in conduct that has caused them great distress, and that their mental health and parenting capacities will be negatively impacted if they are forced to deal with the grandmother in making X available to spend time with her. Examples of the grandmother’s conduct include:
(1)Trying to drive a wedge between the parents;
(2)Sending gifts to the mother in her maiden and not her married name;
(3)Making malicious complaints to the father’s employer;
(4)Engaging in manipulative behaviour and encouraging other family members to pressure the parents;
(5)Telling the mother that she should divorce her husband and that she wishes she hadn’t been born;
(6)Threatening to report the mother to child services;
(7)Threatening to report the mother engaging in elder abuse; and
(8)Threatening to keep the parents in court for the next few years and incurring significant legal fees.
Both parties have filed costs notices as required. It is significant to note that the grandmother has already spent in excess of $50,000 in legal costs in her application so far. The parents have spent about $30,000 in legal fees. The parents says the grandmother is wealthy. There is no evidence as to either parties’ financial circumstances. The parties will incur significant further legal fees in order to take the matter to trial. For the parents this is an additional financial stressor and takes away financial resources they could spend for X’s benefit.
THE MATERNAL GRANDMOTHER AND MOTHER’S RELATIONSHIP PRIOR TO X’S BIRTH
The grandmother’s affidavit is significant for what it does not say. It glosses over a significant falling out before X was born. Prior to the relationship breakdown, the mother was working in the grandmother’s business and the father did work for the business. There is a dispute between the parties as to whether or not the mother was fired or left the business. There was also a dispute between the parties with respect to fees the father changed with his work. The grandmother says this was a misunderstanding which was resolved when she paid the bill. She does not engage with the father’s serious allegation that the grandmother and her husband contacted his manager alleging that he had committed fraud and misconduct and should be terminated causing him enormous stress, particularly as the mother was no longer working at the grandmother’s company and did not have an income.
The father also refers to there being a theme of the grandmother trying to assert boundaries in his relationship, and the grandmother and her husband disregarding those boundaries. The parents say that they were stressed and concerned which impacted the mother when she was pregnant where they ceased all contract for nine months from June 2019 to March 2020 with the grandmother. It was during this period that the grandmother started to send gifts to the mother addressed to her in her maiden name, which the parents interpreted as being designed to cause conflict between them. Both parents also refer to the grandmother turning up to the birthing suite despite being asked in writing not to attend. The parents also say that the grandmother makes derogatory comments about both of them, their home, the tidiness of their home, their cooking, their parenting of X, and further complains that she would make derogatory comments about them to X in front of them.
X’S BIRTH AND THE GRANDMOTHER SPENDING TIME WITH X
The birth of a parent’s first child is a special, emotional, and delicate time. Significantly, X was born just a few weeks before the start of the Covid-19 pandemic. X was born with food allergies. The mother says that she and her husband with the doctor’s advice requested that all friends and family who wished to visit X be vaccinated for whooping cough and Covid-19 as it became available. This is a perfectly reasonable and valid decision for parents to make. The grandmother does not address whether or not she obtained the whooping cough vaccine. Various text messages make it clear that the parents were concerned about the grandmother and other family members not being vaccinated.
The grandmother does not engage with this until her affidavit in reply that she has been advised due to her cardiac condition she should not receive the Covid-19 vaccine. As vaccinations for both whooping cough and Covid-19 were clearly known concerns of the parents, it is surprising that the grandmother did not address this in her first affidavit.
There is a dispute between the parties as to whether or not the grandmother attended the birth uninvited and whether not the parents had asked the grandmother on multiple occasions not to attend.
The mother refers to the pressure that the grandmother placed on her to allow visits with X. This needs to be seen in context of there being a period of nine months whilst the mother was pregnant where the relationship broke down completely, and they did not communicate at all.
In her first affidavit the grandmother refers to having a close and positive relationship with her daughter and looking after X with her husband from 9am to 6pm on Fridays during the lockdown periods. In her second affidavit, the grandmother annexes several photographs of her and her husband with X to show that they had a happy and loving relationship. The parents agree that she looked after X on about 20 occasions. The mother says on some occasions she was there as well.
In her affidavit, the mother annexes a photograph sent by the grandmother on 23 March 2020, which is of an empty table with place settings for a family meal with photographs of X on the wall and several notes on table mats saying “please let us see our grandchild, niece, great-grandchild". This photograph is highly manipulative. It is clearly designed to place the parents under pressure. This was at a time when the pandemic was breaking out and their baby was less than a month old.
Further at paragraph 13 of her first affidavit the grandmother says the relationship began to break down in August 2021 for reasons unknown to her but then says it was largely because of the stress and isolation caused by the Covid-19 lockdowns. The grandmother’s comments here were somewhat misleading and disingenuous. It is clear from the text exchanges tendered by the parents and the texts included in the mothers affidavit that the problems between the grandmother and the parents date back to before X was born and address some fundamental issues with respect to the grandmother’s attitude to the father, lack of respect for the parent’s boundaries, and pressuring and manipulation by the grandmother.
This is not a case of the parents simply excluding the grandparents without any explanation. The mother and grandmother engaged in family therapy which did not work, though they give differing reasons as to why this is the case.
The mother gives numerous examples of the grandmother not respecting the parents’ boundaries, and refers to a text message sent on 10 October 2021 as an example where the grandmother told her “not to freak out” as they were outside their home. It is also apparent from the text exchanges that the grandmother and her husband were not vaccinated against Covid-19 and that this was of major concern to the parents. The mother includes text exchanges in her affidavit which show the grandmother pressuring the mother to allow them to see X.
Paragraph 4 of the grandmother’s affidavit refers to her husband as being the only father that the mother has known is misleading and quite telling. The mother saw her father fortnightly during school holidays after her parents separated. She maintains a good relationship with him and members of his extended family and he has provided an affidavit in support. The parents’ case is that X enjoys regular time with the grandfather’s extended family and the father’s extended family and that X is immersed in her Greek culture.
There is no doubt that there have been at times heated exchanges between the grandmother and the mother where both have said hurtful things. It appears that the grandmother lacks insight into the importance of respecting her daughters and her husband’s role as parents when they may make different parenting decisions to her.
Tensions escalated between the parties on 12 November 2021. There was a confrontation when the grandmother dropped around some soup on 12 November 2021. The parties give different versions of the event. I cannot resolve those factual disputes at this interlocutory stage. I am troubled by the grandmother only annexing part of a text message from the mother apologising for pushing her that day which provides for a very different context. In that exchange, in addition to apologising for pushing her, the mother sets out that she has told her repeatedly that they are listening to professional medical advice and that she told the grandmother to wait until they were double vaccinated but that the grandmother would not listen and continued to pressure her. The mother suggested that the only way they could move forward was to go to family therapy and talks about the anxiety that she is feeling. The grandmother responds with one line, “you assaulted me, and I am filing a police report". The mother’s negative response to this is entirely predictable and it only escalated further with the grandmother threatening to tell child services that she was an unfit mother. The continuing exchange shows that the grandmother does not engage with the substance of what the mother is saying to her, but dismissively refers to coercive control and goes so far as to accuse the father of falsely writing the messages on her phone, with the grandmother accusing the parents of bullying her and abusing her.
The maternal grandfather supports the parent’s case and refers to conversations that the grandmother had with him, complaining about the father controlling the mother and brainwashing her, which he says has not been his experience. He refers to the grandmother calling him on an increasingly frequent basis in 2022, pressuring him for information about the mother and X. He referred to contacting the mother a number of times to discuss the relationship breakdown because of pressure from the grandmother. The grandmother in answering his affidavit annexes a printout of communication made to him between 12 November 2021 and 23 April 2022 to refute the suggestion that the she frequently called him. This does not assist her as he referred to this occurring throughout 2022.
COMMENCEMENT OF LEGAL PROCEEDINGS
The mother and grandmother engaged in family therapy in an attempt to repair their relationship. They give differing reasons for this being unsuccessful.
The grandmother engaged lawyers. It is clear from the exchanges between the parties that the mother was asking for time and space and the grandmother wanted a firm timeframe as to whether they would engage in family therapy and when she would be allowed to see X. She referred to her rights as a grandparent. The grandmother should understand that grandparents do not have an unfettered right to see their grandchildren. It is the child’s best interests that is the paramount consideration. Again, the messages that the grandmother annexes to her affidavit are selective. For example, she does not include an exchange that took place on 17 May 2022 where the mother says she has repeatedly asked for time and space, but that the grandmother is not respecting that and saying that she was willing to engage in therapy again, which is a big step and to please stop contacting her so much.
The grandmother’s response was to complain that the mother was avoiding her and kicking the can down the road and not being genuine. She accuses the mother of trying to incriminate her in text messages and makes various other complaints and goes so far to suggest that the family therapy was for the benefit of the mother’s mental health, and complains about the cruelty of her treatment over the past nine months. Again, she refers to taking legal action. She is putting responsibility on the parents and denying their experience and then says:
It is really simple. You can put the baby in the current visit us and set a firm date within the next two weeks to family therapy, or you can spend the next few years of your lives fighting us in court and you are not her “legal guardians" your her parents and should do the right thing by [X].
It is unfathomable how the grandmother thought that such an exchange was going to assist her cause. It is entirely predictable that would only create more of a stalemate.
The grandmother wrote to the parents on 20 June 2022, complaining that they had not responded to her lawyer who had arranged for a psychologist, and that as a result the only options were for them was to provide weekly visits and to arrange mediation for visitation or she would commence court proceedings. She signed off saying that “we will continue to do everything we can do to get to see our granddaughter, and we have been advised we will win.”
During this period there were also exchanges of letters between the lawyers. The parents raised a number of concerns in response to the first legal letter, but that letter is not annexed to either parties affidavits. It is clear that the grandmother’s position was that earlier issues had been put to rest and complained about the parents raising and unnecessarily inflaming things.
The mother’s tender bundle, which contained various texts and other communications between the parties dating back to 2019, includes recent text exchanges in December 2022 with the grandmother reaching out talking of her love for them and wishing to see them and X. The mother responds that she is not interested unless she ceases legal proceedings. It is clear from the grandmother’s response that she would only do so if she was able to see X.
It is of note that the amended application is unrealistic. This is particularly so in light of the conflict between the parties which appears to be more deeply rooted than the grandmother portrays it to be. The grandmother’s notions of returning to a situation of seeing X weekly and assisting the parents seems fanciful, assuming that the relationship will be repaired and that spending regular time with X will assist the parents rather than being a source of stress and conflict. The latter appears to be more likely particularly if the matter proceeds to a trial, where the evidence will be tested and the parties cross examined.
The parents’ counsel emphasised many parts of the grandmother’s affidavit in reply where she did not specifically deny the parents’ evidence. The grandmother’s counsel pointed to the general disclaimer at the beginning of her affidavit that where she did not specifically respond to something that should not be taken as an admission. Much like her first affidavit, her affidavit in reply glosses over several concerning issues.
I reject the grandmother’s counsel’s submissions that the parties resolved their issues prior to X’s birth and that for a 17 month period after X was born they had a good relationship. The fact that the parents were facilitating X’s relationship does not mean that the relationship between the parents and grandmother was positive. Rather, it ignores the actions of the grandmother, for example sending gifts to the mother in her maiden name, pressuring the parents shortly after X’s birth, sending a highly manipulative and emotive photograph of the dining table, not respecting the parents boundaries, attending their home on occasions uninvited, making threats to report the mother to Child Protective Services, and accusing the parents of elder abuse. Looking at this pattern of conduct and escalations, I do not accept that the grandmother made threats about keeping the parents in court and having them incur significant costs as being a moment of frustration.
CONCLUSION
There are a number of significant factual issues in dispute. I am mindful that summarily dismissing an application is a drastic measure and should be exercised rarely. There has not been any previous litigation between the parties. Whilst the grandmother’s case is weak particularly with respect to the frequency and extensive amount of time she seeks, I am unable to conclude that she does not have any reasonable prospects of success. I am mindful that the summary dismissal power should be sparingly used given it denies a party the opportunity to fully put their case before the court.
The material raised by the parents is concerning. The correspondence shows the grandmother being inflexible and manipulative at times. There is much in the parents’ material that she does not properly engage with despite filing an affidavit in reply. If there is substance to the parents’ concerns, it may well be that after the evidence is tested at trial the parents will succeed. The grandmother should be aware of this and seriously consider the negative impact that ongoing proceedings will have on all of the parties and the prospects of her repairing her relationship with parents.
The mother and grandmother have already tried family therapy without success. Mediation is unlikely to assist. The parties will be best served by an early trial so that the litigation can be ended as soon as possible.
For the reasons I have given the application for summary dismissal is dismissed.
I will list this matter for the next available compliance and readiness hearing before His Honour Chief Justice Alstergren.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 9 February 2023
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