Keywords:  Children – Dismissal under s 102QB of the Family Law Act of great grandparents’ application for time – Vexatious proceedings order also made – Majority of Full Court dismisses appeal with indemnity costs –  standing to apply for a parenting order as persons “concerned with the care, welfare or development of the child” under s 65C(c)

 

Introduction

In the case of Mankiewicz and Anor  & Swallow and Anor  [2016] FamCAFC153 (16 August 2016),  the maternal great-grandparents appealed against the dismissal of their application to the court for the second time, so that they could spend time with their great-grandchild.

The appellants’ application to spend time with their granddaughter’s four children was dismissed by Judge Watts pursuant to s 102QB of the Family Law Act 1975 (the “Act”)(vexatious proceedings order), as they had lacked standing under s 65C of the Act.

 Background

 The initial application brought about by the appellants was deemed to have lacked legal standing. That is, standing to bring an application for a parenting order, which is governed by s 65C of the Act.

This section of the Act outlines whom may apply for a parenting order. They are as follows:

  1. a) Either or both of the child’s parents;
  2. b) The child; or
  3. ba) A grandparent of the child; or
  4. c) Any other person concerned with the care, welfare and development of the child.

 

At the time of the application, the Judge determined that the great-grandparents did not have the unconditional right to apply for the care of the children, as they needed to establish that there was a real concern for the care of the children’s welfare and development.

In addition the Judge made a vexatious order, as it had been discovered that the appellants acted alongside their son who was notorious to the courts for frequently bringing vexatious claims. Despite, however, the vexatious nature of the matter, the fundamental issue was that the claim had not met the provisions of s 65C.

 Decision

In reaching the decision to reject the appeal, the appeal Court had concluded that no evidence had been presented to suggest any change in circumstances about the appellants standing since the former proceedings in 2009.

The Court exercised its discretion under s 102QB(2) of the Act and the following orders were made:

1) Section 102QB(2)(a) to dismiss their pending application and the other under; and

2) Section 102QB(2)(b) to restrain them from bringing any further parenting applications.

As the appellants’ were wholly unsuccessful on appeal they were ordered to pay the respondents’ indemnity costs fixed in the amount of $15,000.

 

By on November 11, 2016   /   Blog   /   Leave a comment

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