05 November 2020
Children - Summary dismissal of non-parent application for 'spend time with' orders
A grandparent is making an application for both interim and final orders to spend time with their grandchildren where family violence is being flagged on the notice of risk. We are filing a response for the respondents against the application and have been instructed to seek summary dismissal of both applications.
The interim orders sought are two hours one day per month while the final orders sought are similar but longer hours. We understand that dismissal is unlikely. The respondents are concerned that interim orders allowing time with the grandchildren will be given before final determination. Please provide suitable case law and any relevant advice.
Thank you for the question.
The threshold for summary dismissal is high. The applicant needs to establish that there is no reasonable likelihood of success of the application. See r 10.12 of the Family Law Rules 2004.
A case which deals with the test for summary dismissal is Janz & Janz [2007] FMCAfam 876.
Two cases involving summary dismissal of non-parent applications are Penn & Haughton & Anor [2013] FCCA 1941 and Grimshaw & Thanh & Anor [2014] FCCA 2614.
It is quite common for final orders to be identical or similar to the interim orders sought.
Putting aside whether time is appropriate overall and the consideration of supervised time, the grandparent seeking a shorter period initially and then a longer period is appropriate as graduated regimes are quite common where there has not been time, or a lot of time, previously.
Regards
Mentor
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