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Great Grandparent’s Appeal to Spend Time with Four Great Grandchildren Dismissed

The Full Court of the Family Court recently released judgment dismissing an appeal against the Family Court’s dismissal of an application from great grandparents to spend time with their four great grandchildren. The Family Court also made a vexatious proceedings order against the great grandparents.

The grandfather of the children had previously filed an application to spend time with his grandchildren on two previous occasions. The Family Court had found on both occasions that the grandparents lacked standing to bring their application.

Standing to bring an application for a parenting order is governed by s65C of the Family Law Act which provides:

A parenting order in relation to a child may be applied for by:

a)    Either or both of the child’s parents; or

b)    The child; or

ba) A grandparent of the child; or

c)   Any other person concerned with the care, welfare or development of the child.

The Court found that Applicants who fall within s65C (c) of the Act only have the right to bring an application to attempt to establish facts which would permit them to apply for a parenting order, and have no right to seek substantive relief until they establish those facts. Whether or not they have standing to apply for a parenting order, is a question of fact and is to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child.

The Full Court found that the great grandparent’s factual premise which underpinned their challenge was not made out including allegations that the children’s mother “was not of sound mind to refuse access of her children to the maternal great grandparents.”

The Full Court also upheld the Family Court’s vexatious proceedings order, noting that the grandfather was acting in concert with the great grandparents. The grandfather had prepared and settled the great grandparent’s affidavits and the great grandparent’s application mirrored the grandfather’s previous application from 2009. The grandfather had already been declared a vexatious litigant by the Supreme Court of New South Wales in 2005, and by the Family Court in 2009.

The Full Court found that the great grandparents pursued their appeal with total disregard to their lack of standing, the known facts and in circumstances where the proceedings which gave rise to the appeal were, themselves, vexatious. The Full Court ordered that the great grandparents pay the parent’s costs of the appeal on an indemnity basis.

 

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