Charr & Dalton (No 2)
[2022] FedCFamC1F 950
Federal Circuit and Family Court of Australia
(DIVISION 1)
Charr & Dalton (No 2) [2022] FedCFamC1F 950
File number(s): DUC 273 of 2021 Judgment of: SMITH J Date of judgment: 18 November 2022 Catchwords: PROCEDURAL – Application in a Case by the paternal aunt seeking orders she be joined to the proceedings – Where the father and Independent Children’s Lawyer support the Application – Where the mother opposes the Application – Where the Court does not accept the argument by the mother that the paternal aunt comes to the Court in this application without clean hands – Where the Court is satisfied the paternal aunt has a meaningful relationship with the subject child – Where the Court is satisfied the paternal aunt is a person who is concerned with the care, welfare, and development of the subject child – Where the Court is satisfied the paternal aunt is a person who is entitled to participate and be heard – Application granted – Paternal aunt is joined as second respondent to the proceedings. Legislation: Family Law Act 1975 (Cth) s 65C(c)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.04
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 18 November 2022 Place: Newcastle by Microsoft Teams Counsel for Applicant Mr Hogg Solicitor for the Applicant Central West Legal Pty Ltd Counsel for the Respondent Not applicable Solicitor for the Respondent JWP Lawyers Counsel for Second Respondent Mr Hogg Solicitor for the Second Respondent Central West Legal Pty Ltd Counsel for the Independent Children’s Lawyer Not applicable Solicitor for the Independent Children’s Lawyer Joplin Lawyers ORDERS
DUC 273 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHARR
Applicant
AND: MS DALTON
First Respondent
MS D
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding to intervene filed 3 November 2022 by Ms D is granted.
2.Ms D is joined to the proceedings as the Second Respondent to these proceedings.
3.Ms D is to comply with the Orders dated 31 October 2022 as to “TIMETABLE, WITNESSES, EVIDENCE”, AND “GENERAL ORDERS FOR PREPARATION FOR FINAL HEARING”.
4.Ms D’s Affidavit must be no more than fifty (50) pages of text.
5.An additional day (21 February 2023) will now be added to the Final Hearing.
6.The final hearing is confirmed for 7 days commencing 13 February 2023, in person at the Newcastle Registry of the Federal Circuit and Family Court of Australia.
THE COURT NOTES THAT:
A.The Court will confirm with the Court Child Expert Dr J if she is available for cross-examination on 16 February 2023 and 20 February 2023, and advise the parties of these inquiries in due course.
B.The parties advise they will develop a Joint Trial Plan.
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 Charr & Dalton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
JUDGMENT EX TEMPORE
Smith J
These proceedings are about X, who was born in 2019, and is currently just under three years old. In particular, the matter before me today is whether X’s paternal aunt, Ms D, should be allowed to intervene in these proceedings and seek parenting orders. The applicant in the proceedings is X’s father, Mr Charr, who is 44, and the respondent is her mother, Ms Dalton, who is 35. Each party seeks a primary live with order.
At the moment, X lives with the mother and spends supervised time with the father. In the course of these proceedings a family report was ordered and then was prepared by Dr J, dated 12 September 2022. Dr J, who I will refer to as, “the Expert”, interviewed the father, the mother, and also Ms D.
In her report, which I will not go through at length, the Expert raised serious concerns about the mother’s parenting capacity. She also raised some concerns about the father’s parenting capacity. As a consequence of her views and opinions, the Expert made certain recommendations to the court. Those recommendations are, of course, untested, as is her opinion, but they are relevant for the determination of the issue of whether or not Ms D should be allowed to join in the proceedings.
The Expert said from [187 to 191]:
[187] If the Court remains concerns [sic] about the child’s safety and well-being in the care of the father, it is recommended that the subject child be placed in the care of the paternal aunt, [Ms D].
[188] If the Court has no concerns regarding the safety and well-being of the child in the care of the father, it is recommended the child live with the father.
[189] If the Court has no concerns regarding the safety and well-being of the child in the care of the father, it is recommended the father have sole parental responsibility for the subject child.
[190] If the child is placed in the care of the paternal aunt, it is recommended that the paternal aunt become a party in the current matter.
[191] It is recommended that if the child does not reside with the mother, the mother’s time with the subject child be determined post examination of the current day-care records and updating child protection records, with current recommendations being that the time needs to be limited and potentially, supervised.
It can be seen that the Expert’s recommendations, in summary, were that X live with her father, but in the alternative if the court was concerned about the father’s capacity, that X live with Ms D.
The Expert also opined, although it may have been outside her expertise, strictly speaking, that Ms D should be joined as a party.
Arising out of the Expert’s report, Ms D has filed an Application in a Proceeding on 8 November 2022, seeking orders that she be granted leave to intervene in the proceedings, and be named the second respondent. The father and the Independent Children's Lawyer support Ms D’s application to be joined. The mother opposes Ms D’s application.
There are significant factual issues in the proceedings. There are significant contests of facts. The factual basis upon which the Expert has reached her opinion is contested. This is an interim proceeding; I am not in a position to make any finding on these contested facts. The Expert’s opinion, of course, will need to be tested in court, her assumed facts tested against the facts as the court will find them, and her opinion also tested. Nevertheless, for the purpose of today’s proceedings and given the nature of the Application I give some weight to the fact that this is what the independent Expert has recommended.
Now, the mother’s evidence, on the relevant question of Ms D’s involvement in X’s life, is not that Ms D was not involved in X’s life that is until about June 2021, when the parties’ relationship broke down.
The mother spoke to the Expert about Ms D, the expert’s comments about that are at paragraph [81] of the report:
[81] The mother reported that prior to parental separation, she and the subject child lived with the paternal aunt and this had occurred in the past as well, with minimal issues. The mother reported that she found the paternal aunt a support until she attempted to leave the local area with the subject child. When asked about who cared for the subject child when she was working night-shifts, the mother reported that she did not leave the subject child in the care of the father as she was concerned that the father would not wake up for the child in the middle of the night if needed, due to his sleep apnoea. The mother reported that the subject child would either stay with the paternal aunt, [Ms D] or the paternal grandmother, whilst the mother was working night-shifts. The mother was asked if this were true, why the paternal aunt was not allowed to attend supervised time with the subject child and the mother’s response was because the subject child had been exposed to family violence perpetrated by the paternal aunt at the point of leaving the paternal aunt’s home.
The mother’s evidence in her affidavit before me today, similarly, does not contest Ms D’s involvement in X’s life.
The issues that the mother raises in her evidence before me, as she raised with the Expert was, her view that Ms D engaged in family violence against her, and that X was exposed to this, and also she has also led evidence today which goes to the question of Ms D’s mental health.
Now, Ms D’s mental health status, and whether it has any impact on her parenting capacity, and the question of whether or not Ms D engaged in family violence are both matters for trial.
The mother relies upon the fact that Ms D has not spent time with X for 18 months, but I note that where that has occurred solely due to the mother’s decisions I do not consider that a matter which affects the question of whether or not Ms D relevantly has a meaningful relationship with X or is relevantly a person “concerned with the care, welfare, or development of” X.
The mother also says that Ms D is a person who has not disclosed her mental health status, and therefore, comes to the court in this application without “clean hands" which disentitles her from seeking to be joined. Ms Ds’ mental health may be a relevant factor at trial. Depression is not necessarily averse to parenting capacity, but it will be a matter for trial. I do not accept the proposition that Ms Ds’ is barred from being joined on that that basis.
The mother also opposes Ms D’s joinder on the basis that Ms D’s prima facie position is that X should live with her father, and that if that occurs Ms D is likely to be able to spend time with X as permitted by the father. In effect she says there will be two parties and counsel in the same interest. However, if at trial I do not accept that either the mother or the father is an appropriate person for X to live with, Ms D appears likely to seek orders, consistent with the recommendation of the Expert, that X live with her. Again, that is a matter for trial. However, as the Court may be asked to made orders placing the child with Ms D, by the father or by Ms D, then Ms D should be a party.
I note the matter has been, effectively, given expedition as a consequence of the Family Report, and I have listed it for trial commencing next February.
As Ms D has been interviewed by the Expert I can see no reason why joining Ms D will result in any need for adjournment or delay.
Rule 3.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) deals with the process by which a person who seeks to be joined is to apply, and Ms D has complied with the rules, no objection is taken as to the form of the proceedings.
I consider this to be a reasonably straightforward matter. Although there may be, and indeed, I have no doubt there will be, significant factual issues around what the final orders should be, I am satisfied that Ms D is a person who has a meaningful relationship with X, and is a person who is, “concerned with the care, welfare, and development of”, X within the meaning of section 65C(c) of the Family Law Act 1975 (Cth).
On the question of whether or not Ms D should be allowed to be joined, noting what I have said and noting the issue was raised by the Expert, whilst being allowed to join does not mean that Ms D will ultimately be successful at any final hearing in obtaining parenting orders, I am satisfied that she is a person who is entitled to participate and be heard, and I’m also satisfied, to the extent that it may be relevant, that Ms D’s participation as a party, to allow the court to consider whether she is a person in respect of whom orders should be made, is in X’s best interests. It therefore follows that I find that the application should be granted.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 6 December 2022
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