Wimble and Wimble - [2007] FMCAfam 710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WIMBLE & WIMBLE

[2007] FMCAfam 710

FAMILY LAW – Children – contact – the rights of persons other than the parents to enjoy a relationship with the children.

Family Law Act1975

Bigg v Suzi [1998] FamCA 14
Pelerman v Pelerman (2000) FLC 93-037
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Rana v The University of South Australia (2004) 136 FCR 344 and 354-355
Stevens v Lee (1991) FLC 92-201

Applicants:

MR M WIMBLE & MS M WIMBLE

Respondents:

MR S WIMBLE & MS S WIMBLE

File number:

BRM8445/2006

Judgment of:

Burnett FM

Hearing date:

27 July 2007

Delivered at:

Brisbane

Delivered on:

17 September 2007

REPRESENTATION

Counsel for the Applicant:

Ms J. Falcke

Solicitors for the Applicant:

Sempre Vero Lawyers

Counsel for the Respondent:

Mr Murphy Senior Counsel

Solicitors for the Respondent:

Barry & Nilsson

ORDERS

That paragraphs 1(a), (c) and (d), 3 and 5 of the application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM8445 of 2006

MR M WIMBLE AND MS M WIMBLE

Applicant

And

MR S WIMBLE & MS S WIMBLE

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding the Applicants are the grandparents of M born in 1994 and R born in 1999. They seek orders permitting them to spend time with the children. The Respondents are the parents of the children. They oppose the application and upon the first return of the application made application for the grandparents’ application to be struck out.

Background

The children are the paternal grandchildren of the Applicant paternal grandfather. The grandfather’s wife is the step-grandmother of the children. The father says that he has always had a difficult relationship with the grandfather. He says this difficult relationship pre-existed his marriage to his wife and that the relationship has deteriorated to the point where there is “no relationship” now extant. The father swears that the relationship ceased from or about 30 April 2004 when a disagreement arose between them. That disagreement was subsequently amplified in correspondence exchanged between them and relates to an allegation made by the grandfather that the father owes him a sum of $150,000.
More particularly the father says that the children had no relationship with the grandfather or step-grandmother. He says that in particular the child R has no recollection or recognition of the grandfather and that the child M has only a vague one. Given the respective dates of birth of the children they would have been approximately 10 and 5 respectively at the time of the formal severance of the relationship between the father and the grandfather.
The father says that R may have seen his grandfather and step-grandmother on one or two occasions at the most and that in any event he had never had any one on one unsupervised time with his grandfather or step-grandmother. Likewise concerning M there were a few supervised visits although there was also an occasion where the grandfather stayed overnight at their house. Overall the effect of the parents’ affidavits were to downplay the extent and significance of the relationship, if any, between the grandparents and the children.
In their affidavits the grandparents challenge the thrust of the parents’ affidavits. For instance the grandfather complains that he has difficulty in locating the exact residential location of the parents. He swore that whilst he attempted to contact the father on his mobile telephone number he had not been able to speak with him as the father refused to speak with the grandfather on the phone.
He also swore that he and the step-grandmother had sent presents and cards for birthdays and Christmas to the grandchildren which had actually been handed to the receptionist at an office where it was believed that the mother works. It was denied that on occasions when attempts were allegedly made by the mother to initiate contact between the children and their grandparents those requests were turned down. Furthermore the grandparents challenged the assertion that the child M had never spent unsupervised time with them. They swore that on many occasions the step-grandmother collected M from pre-school and brought M back to the grandparents’ house for collection later in the evening by the parents. They also say there was occasion when they stayed at the parents’ home and looked after M for approximately one week whilst the parents were in Sydney.
In the step-grandmother’s affidavit she deposes to there having been regular meetings between the grandparents and the parents which included M. The grandparents acknowledge that they have had limited contact with R but maintain the position that M is significantly different. In effect they maintain their ability to develop a meaningful relationship with M was unilaterally determined by the parents.
Counsel for the parents summarised the position as one involving a substantive application in respect of two children now aged 12 and 7 who were part of an intact family unit of the parents who had been married for seventeen years. The family was intact and there was no disputation within the family unit itself. It was submitted that there was evidence demonstrating the two contact visits with the younger of the two children and sporadic contact with the elder of the two children. That parents submitted this was not a case of the grandparents having a longstanding bond.

Summary Dismissal

The parents sought that the substantive application be summarily dismissed. In support of that submission the Court was referred to the authority of Bigg v Suzi[1] and Pelerman v Pelerman[2]. In particular Counsel for the parents noted in Pelerman the relevant principles were detailed as,
[1] [1998] FamCA 14
[2] (2000) FLC 93-037
“(a)   The power for summary dismissal is a discretionary on;
(b)     Relief “is rarely and sparingly provided”;
(c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)     A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)     If there is a serious legal question to be determined, it should ordinarily be determined at trial”;
(f) “If not withstanding the defects of pleadings, it appears that a party may have a reasonable cause action which it has failed to put in proper form, a Court would ordinarily allow that party to reframe its pleadings.”
At paragraph 20 of the Full Court’s judgment the Court further cited from the judgment in Kirby J in Lindon v The Commonwealth (No. 2)[3] where His Honour stated,
“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 in advancing a claim that is clearly frivolous or vexatious…”[4]
[3] (1996) 70 ALJR 541.
[4] At 544-545.
That later matter has also been amplified in the Federal Court by Lander J in Rana –v- the University of South Australia[5]. There His Honour observed,
The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action… There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. …
The Court, on hearing an application under FMC Rules 4.04 (1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action – not that on the evidence presently available the applicant will succeed on the cause of action.
… (Summary dismissal) should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.”
[5] (2004) 136 FCR 344 at 354-355.
In this case the principal argument contended for the parents was that the grandparents’ case cannot succeed on the facts as provided. Three matters were raised:
a)No meaningful relationship existed between the parents as primary carers and the grandparents who seek the orders;
b)The relationship between the grandparents and the parents is hallmarked by a loss of all communication ability;
c)A suggestion that the case is vexatious or is being pursued for a vexatious or improper purpose.
Section 64B of the Family Law Act contemplates the rights of persons other than the parents to enjoy a relationship with the children. As with all other applications involving parenting orders it requires an assessment of what is in the best interests of the children.
If the Court were to accept each of the three matters advanced above then clearly the parents’ application for summary dismissal could be firmly founded. However each of those matters complained of by the parents are matters which appear to be alive on the evidence:
a)The grandparents maintain they had a meaningful relationship with the elder of the two children and have sought to advance a relationship with the younger of the children but those efforts have been frustrated by the parents;
b)Difficulties in communication are alleged to be frustrated by the parents;
c)Insofar as it is alleged that the grandparents are prosecuting their application for a vexatious or improper motive is an issue which is also at large.
Even in circumstances of strained relationships between parents and grandparents that fact alone does not appear to disqualify grandparents from a right to develop and maintain as best as practicable in the circumstances some relationship with their grandchildren. So much is demonstrated by the facts in Stevens -v- Lee[6]. That case concerned circumstances involving an estranged grandparent and her daughter-in-law. Although direct contact between the paternal grandmother and the child was not permitted because of the longstanding hostility between them, the grandparent was favoured with orders permitting her to have contact with her grandchild providing for some channels of communication. In this case that one of the orders sought by the grandparents is an order for the ability to communicate with their grandchildren by telephone. Another of the orders sought is one requiring that they be informed of any organised school function to which grandparents would be expressly welcome to attend. Such orders appear to me to be of the kind which would be appropriate.
[6] (1991) FLC 92-201.
In my deliberations I have had particular regard to the observations in Lander J in Rana (supra). I consider that where there is, as a default position, an entitlement for even simple orders of a non-intrusive kind, it would be inappropriate to dismiss the application simply because some matters established might deny the grandparents the full scope of the relief sought.
Notwithstanding that matter and the theoretical prospect of an application I acknowledge the force of authority supporting the proposition that it is appropriate to dismiss an application where there is no reasonable cause of action. To that end it could be said that such a claim is also prosecuted vexatiously. However that claim does require a certain measure of assessment of prospects such that a favourable outcome whilst possible is improbable.
In this case I do not consider that the prospects of some relief for the grandparents is improbable. However some aspects of the application clearly demonstrate an improbable outcome and in that regard they should be dismissed. In particular orders contended for in paragraphs 1(a), 1(c), 1(d), 3 and 5 do in the current circumstances (even allowing for disputed facts) extend beyond the scope of orders which might ordinarily be permitted. I dismiss those paragraphs of the grandparents’ application.
I ask the parties to submit an appropriate minute of order dealing with the progress of the balance of the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Bev Schmidt

Date: 17 September 2007