Weist and Weist and Ors
[2019] FCCA 3189
•21 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEIST & WEIST & ORS | [2019] FCCA 3189 |
| Catchwords: FAMILY LAW – Rights of grandparents – grandmother seeking access to her grandchildren – mother and fathers of the children refuse – whether the grandmother has an arguable case. |
| Legislation: Family Law Act 1975 (Cth), s.11F Federal Circuit Court Rules 2001 (Cth), r.13.10 |
| Cases cited: Church & Overton [2008] FamCA 965 Penn & Haughton [2013] FCCA 1941 |
| Applicant: | MS WEIST |
| First Respondent: | MS A WEIST |
| Second Respondent: | MR JERRY |
| Third Respondent: | MR BYRNE |
| File Number: | DGC 2568 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 21 October 2019 |
| Date of Last Submission: | 21 October 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 21 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr McConvill |
| Solicitors for the Applicant: | James McConvill Lawyers & Associates |
| Counsel for the First Respondent: | Ms Tiernan of Counsel |
| Solicitors for the First Respondent: | Emera Smith Family Law |
| The Second Respondent appearing in person |
| The Third Respondent appearing in person |
ORDERS
The Applicant have leave to file an amended application within 14 days without the need on the part of the Respondents to file an amended Response.
Pursuant to section 11F of the Family Law Act 1975, the Applicant, First Respondent (if the Second and Third Respondents are not unavailable due to work commitments) and child V born … 2006 (“the child”) attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference in respect of V born … 2006, W born … 2008, X born … 2010, Y born … 2012 and Z born … 2017 (“the children”) on 3 December 2019 and:
(a)the respondents and child to attend at 9.00am; and
(b)the applicant to attend at 10.00am,
at Level 1, 53-55 Robinson Street, Dandenong.
Pursuant to Order 2 above the Family Consultant shall provide an oral report on 3 December 2019 at 2.15pm to the Court and to the parties.
The matter be adjourned to the Duty List of Federal Circuit Court of Australia at Dandenong on 3 December 2019 at 10.00am for Oral Report/Directions.
The parties’ costs be reserved.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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.
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.
Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Weist & Weist & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2568 of 2019
| MS WEIST |
Applicant
And
| MS A WEIST |
First Respondent
| MR JERRY |
Second Respondent
| MR BYRNE |
Third Respondent
REASONS FOR JUDGMENT
(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
The Applicant grandmother (‘the grandmother’) initiated this matter on 9 August 2019.
By that application, the grandmother sought orders that:
1. That the Children spend time with the Applicant Grandmother as follows:
V, born … 2006;
W, born … 2008;
X, born … 2010;
Y, born … 2012; and
Z, born … 2017
(collectively "the children")
(a) Each Tuesday from after school or daycare until 6.30pm. That the First Respondent Mother collect the children from the Applicant Grandmother's house.
(b) Every alternate Saturday from 1:00pm until 7:00pm.
(c) For three nights during the Victorian gazetted term school holidays, as agreed between the parties, and failing agreement, from the conclusion of school on the last day of term for three consecutive nights;
(d) For five nights during the Victorian gazetted summer holidays, as agreed between the parties, and failing agreement, from 2 January for five consecutive nights.
2. That the children communicate with the Applicant grandmother every Thursday from 7.00pm until 7.30pm, and upon the children's reasonable requests, and that the First and Third Respondents facilitate such contact.
3. That the Applicant is hereby authorised to obtain from the children's schools all notices, letters, reports or photos at the Applicant's cost and invitations to attend activities to which grandparents are invited.
4. That the parties do not discuss the proceedings with or in the presence or hearing of the children.
5. Any other Order that this Honourable Court deems appropriate.
A response was filed by the First Respondent mother (‘the mother’) on 15 October 2019. There has been no response by the Second or Third Respondents, though Ms Tiernan of Counsel indicated from the bar that those parties were in agreement with the mother’s response. Accordingly, I will treat Ms Tiernan’s submissions and the mother’s evidence as being provided on behalf of the Three Respondents (collectively, ‘the Respondents’). The Second Respondent is the father of the first four mentioned children, and the Third Respondent is the father of the fifth. The mother is currently in a relationship with the Third Respondent.
Consideration
The Respondents’ response seeks to have the application summarily dismissed. The Court considered this application.
The test whether an application may be summarily dismissed is set out in rule 13.10 of the Federal Circuit Court Rules 2001 (Cth):
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar 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
[…]
The power to summarily dismiss a matter should not be taken lightly and full weight must be given to the expression ‘no reasonable prospect’.
A feature of similar cases where a Court has exercised the power to summarily dismiss an application is where there has been a family report. In this proceeding, there has not been a family report and there is a contest in the evidence between the grandmother and the Respondents. On this basis, I am not minded to make an order summarily dismissing the claim. I will make an order for a section 11F conference to ascertain the views of the children.
The grandmother has been referred to the decision of Benjamin J in Church & Overton [2008] FamCA 965 (‘Overton’) which, in turn, is referred by Lapthorn J in Penn & Haughton [2013] FCCA 1941. The Overton decision clearly sets out the rights of the parents to make decisions about their children, including the rights of a parent to make decision about whether they spend time with the grandparent. At [45] of Overton, Benjamin J states that:
There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures (most notably, sterilisation) in the absence of a court order made by this court. But the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.
This, clearly, includes making decisions about the time that the children spend with their grandparents.
The Court has made the position absolutely clear that there are significant issues with the grandmother’s application, particularly the breadth of the application seeking periods of spend time and by seeking access to school reports. It is notable that these orders are not seeking to record current (or previous) arrangements.
The Court has significant difficulties with the application as it is presently framed. The grandmother has indicated she wishes to amend her application to modify the periods of time, and leave has been granted for her to do that.
The grandmother is on notice that the Respondents will be seeking costs. The Respondents maintain that this application is hopeless.
Conclusion
I have acted cautiously in making these orders. However, I hope it is clear from what I have just said that the Court does have the power to order costs and that the grandmother would be well minded to consider the effect any amended application and further litigation is having on her grandchildren.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 12 November 2019
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