Calcott & Arnis
[2023] FedCFamC2F 371
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calcott & Arnis [2023] FedCFamC2F 371
File number(s): PAC 1087 of 2015 Judgment of: JUDGE STREET Date of judgment: 15 February 2023 Catchwords: FAMILY LAW – PARENTING - joinder of party Legislation: Family Law Act1975 (Cth): Part VII, ss 43, 60B, 65, 60ZN Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 15 February 2023 Place: Sydney Counsel for the Applicant Ms Dalrymple Solicitor for the Applicant Mahony Family Lawyers First Respondent In person Second Respondent Ms Lam, Christina Lam & Associates Independent Children’s Lawyer No appearance ORDERS
PAC 1087 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CALCOTT
Applicant
AND: MR ARNIS
First Respondent
MS B CALCOTT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
15 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The final hearings dates of 13, 14 and 15 March 2023 are vacated.
2.The procedural orders, dated 17 October 2022, associated with the previous final hearing date are vacated.
3.The parenting matter is fixed for final hearing at 10:00am on 16, 17 and 18 October 2023 via video and/or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.Pursuant to s65C (C) of the Family Law Act 1975 (Cth), the second respondent Ms B Calcott is declared a person interested in the care and welfare of X, born in 2009, and Y, born in 2012 (“The Children”) and is joined to the proceedings pursuant to r 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
5.Pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms C (“the Single Expert”), be appointed as Single Expert Witness to enquire into and report upon matters relating to the welfare of the Children.
6.The parties shall:
(a)Attend all appointments made with the Single Expert;
(b)Ensure the attendance of the children at such times and dates as directed;
(c)Comply with all reasonable directions and requests made by the Single Expert to assist her in the preparation of the Report.
(d)Do all things to ensure the attendance of their current partner (if any) and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.
7.In preparing the Report, the Single Expert be requested to consider the following matters:
(a)The benefit of the children having a meaningful relationship with both of their parents;
(b)Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(c)Any views expressed by the Children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(d)The relationship between the Children and each other and with each of their parents and any other relevant person, including the Second Respondent Ms B Calcott;
(e)The extent to which each of the Children’s parents have taken or failed to take the opportunity:
(i)To participate in making decision about major long term issues in relation to the children; and
(ii)Spend time with the children; and
(iii)Communicate with the Children.
(f)The extent to which each of the Children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
(g)The likely effect of any change in the children’s circumstances, including the likely effect on the Children of any separation from either of the parents or any other person with whom the children have been living;
(h)The practical difficulty and expense of the Children spending time with and communicating with either parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
(i)The capacity of each of the Children’s parents and any other person, including a grandparent or relative to provide for the needs of the children including their emotional and intellectual needs;
(j)The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the Children and either of their parents and any other characteristics of the children that the Single Expert thinks is relevant;
(k)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the Children’s parents;
(l)The impact of family violence involving the Children or a member of the Children’s family;
(m)The desirability and likely effect of each parties’ proposal for parenting arrangements.
(n)Any recommendation as to live with and spend time with arrangements which may be appropriate.
(o)Any other matter the Single Expert considers relevant.
8.In the course of preparation of the report, the Single Expert is authorised to speak to and obtain information from any schoolteacher, or school principal, or school counsellor of the Children.
9.The costs of the Single Expert is to be funded equally by all three parties to the proceedings, being the applicant, first respondent and second respondent.
10.The parties and ICL have leave to relist the matter on 3 days’ written notice in the event difficulties are encountered regarding the preparation of the Single Expert Report prior to the Final Hearing.
11.The ICL, will to the extent of their participation in the proceedings, be described after the first and second respondent in any court document being filed.
12.Leave is granted to the Single Expert to access to all records on the court file including material produced on subpoena.
13.Leave is granted to the parties, by interparty communication to provide information to the Single Expert.
14.Following the preparation of the Single Expert Report, the ICL is to arrange an informal mediation between the parties to try and advance the significant and meaningful time between the first respondent and the children.
15.The second respondent file and serve a response on or before 8 March 2023.
16.The applicant and the second respondent file and serve a consolidated trial affidavit on or before 25 August 2023.
17.The applicant file and serve an updated application on or before 25 August 2023.
18.The first respondent file and serve a response on or before 22 September 2023.
19.The first respondent file and serve a consolidated trial affidavit on or before 22 September 2023.
20.The applicant and second respondent file and serve a case outline on or before 29 September 2023.
21.The first respondent file and serve a case outline on or before 6 October 2023.
22.The ICL file and serve a case outline on or before 12 October 2023.
23.Leave is granted to the parties to provide tender bundles electronically or via USB device seven (7) days prior to the hearing date.
24.Leave is granted to the parties including the ICL to issue more than five (5) subpoenas, subject to the filing of a proper notice of objection.
25.Photocopying access is granted to the parties including the ICL to all material produced on subpoena, subject to the filing of a proper notice of objection.
26.Leave is granted to the parties to provide proposed consent orders, to be made in chambers if appropriate.
THE COURT NOTES THAT:
1.If drug testing has taken place, the parties should engage in expeditious negotiations to progress the significant and meaningful unsupervised time between the first respondent and Children, or otherwise agitate the issue by interlocutory application if it cannot be rectified by consent.
2.The Court expects the parties and ICL to try and agree upon interim parental responsibility in respect of Children if the applicant’s condition substantial deteriorates.
3.The Court encourages the ICL, as soon as possible, to advance the issues advanced in the family report in respect of the issue of significant and meaningful time between the first respondent and the Children and risk regarding the need for parental responsibility if the applicant’s heath deteriorates.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Calcott & Arnis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
This is an application by the half-sister of two children, the subject of parenting proceedings before the Court, to be joined to the proceedings in circumstances where recently the applicant mother has had a regression of cancer and is now subject to an uncertain prognosis. The affidavit by the half-sister identifies significant interaction between the half-sister and the two children, the subject of these proceedings, in terms of their welfare and assisting the mother in their parenting.
There are issues in relation to the best interests of the children in respect of the father, and there have been orders made relating to drug tests which, on the evidence currently before the Court, were not complied with and, at this stage, the Court understands the only access is supervised access. The affidavit by the half-sister identifies issues of serious family violence which could impact on the orders that the Court might make in respect of the proceedings. The Court does have the benefit, also, of a recent family report which does identify the two children wanting to spend more time with the father and, indeed, unsupervised time.
Most unfortunately, the person who has been the ICL in the proceedings has, due to other appointment of office, withdrawn from the proceedings, but it is apparent that the children are approaching an age where their wishes are of significant weight. Of greater concern, obviously, is the potential inability of the applicant mother to perform her role, due to the advancement of her cancer and the uncertain prognosis, in relation to the children. The family report supported a continuing position of parental responsibility with the mother, given the history of the matter and the conflict, and the presumption under the statutory regime is one that may well have been rebutted if the Court were to accept the assertions identified in the family report or in the evidence of the applicant mother or of the half-sister.
That said, however, it is one where it is apparent that the children are approaching an age where it may well be appropriate to encourage and develop a relationship beyond the unsupervised time once the Court is satisfied that there has been compliance with the order in relation to drug testing. This is because the children are at an age where they can properly convey their concerns to the person who may have parental responsibility. The Court has power to make orders under the Family Law Act1975 (Cth) (“the Act”) in relation to parental responsibility in relation to a third party.
The application is one brought under s 65 of the Act joining of the half-sister, Ms B Calcott, to the proceedings and foreshadowing the filing of a response to seek orders in relation to parental responsibility concerning the children. Mr Arnis opposes the joinder in circumstances where, firstly, he identifies he is the parent of the child and that the proposed joinder is in relation to a half-sibling. In the circumstances of this case, it is apparent that the Court has power to join a person who is seeking appropriate orders or may be seeking appropriate orders that affect the welfare of the children. In the sad circumstances of the present case, where the applicant has an uncertain prognosis, there is an obvious need for the potential joinder that has been identified.
Mr Arnis did not identify any other proper reason why the joinder should not take place. The Court is mindful of the fact that the joinder may well affect the intended hearing date. While the application identifies a desire to try and retain the hearing date, it is probably unrealistic that a further family report can be prepared in time, together with a new ICL, to ensure that the existing hearing date is kept if the second respondent is joined to the proceedings. Whilst that would be an unfortunate consequence of the joinder, the best interests of the children must prevail in the making of orders affecting these proceedings.
The Court is satisfied that the best interests of the children warrant the joinder of the second respondent in the current proceedings. The Court is also mindful of the fact that if the hearing date is vacated, it will give the first respondent father an opportunity, potentially, to both comply with the court orders in respect of testing and to progress, hopefully, if agreement can be reached between the parties, with unsupervised time, which will impact on the potential future parenting orders that the Court might make. The Court makes these observations in the context of the wishes expressed by the two children that are now of a more mature age and whose wishes will be likely to be given some weight in the outcome of the proceedings.
The Court hopes, with the benefit of the new ICL, the parties and the new ICL may well be able to progress this matter before the next hearing date, and it would be of benefit for the family court writer as well as the Court to have Mr Arnis participate in the family report process so that the Court gets a better insight in relation to his relationship with the children, as well as his response to the issues that are being raised. The Court has taken into account the principles under s 43, s60B and s60ZN of the Act, and is satisfied that this is an appropriate case in the interests of the administration of justice warranting the joinder of the second respondent. The Court is satisfied as a parenting order under Part VII that it is proper and in the best interests of the children to make the joinder order. It is for these reasons the Court made the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 31 March 2023
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