GRANDPARENTS SEEKS TO SPEND TIME WITH THEIR GRANDCHILDREN WHILE PARENTS SEEKS FOR THE SUMMARY DISMISSAL OF THE APPLICATION
Bowles & Anor & Post & Anor [2020] FCCA 3300 (4 December 2020)
This case involves the grandparents seeking to spend time with the grand-children and to be given a “first preference” to care for the them. The parent-respondents of the children in this case seek to have the application summarily dismissed.
Facts:
The Applicants are the parents of the Second Respondent (‘Father’). The Respondents have two children; X born 2017 (‘X’) and Y born 2019 (‘Y’).
Until November 2018, the Applicants were spending regular time with X. Matters took a turn for the worse on 15 November 2018. The Father informed the Applicants that it was the Respondents’ intention that X be cared for by a combination of the maternal grandparents, and the engagement of a nanny when the Respondents are at work. The Applicants were shocked and upset at this news.
The Applicants commenced these proceedings in order to enable them to have a relationship with their grandchildren. The Respondents say that the relationship between them and the Applicants has broken down, that their health has suffered, and that it is not in the children’s best interests to see their grandparents in circumstances where doing so will come at the expense of the parents’ health and happiness.
The final orders sought in this matter include orders to the effect that: 1. the children spend time with the Applicants, that ultimately builds to an amount five hours each alternate weekend; 2. the Applicants be given ‘first preference’ to care for the children in the event that the Respondents are unable to care for them.
The Respondents seek that the Application be summarily dismissed.
Issue: Should the court grant the order sought by the applicants?
Law:
- Family Law Act 1975 45A, 60CA, 60CC
Analysis:
The idea that a particular set of grandparents should be given ‘first preference’ to care for children that are otherwise well cared for, over and above the wishes of their parents, is extremely far-fetched. Such an order would interfere with the rights of these parents to, for example, select a carer for their children, should they need to, because they are required to work, and indeed would interfere with their rights as responsible parents to enrol their children in early childhood education should they wish to do so. The Court would be placing itself in the position of diminishing an exercise of parental responsibility without any justifiable basis for doing so.
The Applicants do not have any reasonable prospect of successfully obtaining the final relief sought. Further, it is difficult to see how the interim relief they seek will resolve matters, or how it is in the children’s best interests.
Conclusion: For all of the above reasons, the application is summarily dismissed.