Che & Don (No. 2)

[2021] FamCA 539

FAMILY COURT OF AUSTRALIA

Che & Don (No. 2) [2021] FamCA 539

File number(s):	CAC 600 of 2021
Judgment of:	GILL J
Date of judgment:	23 July 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – joinder – leave granted for paternal aunt to become party to the proceedings – location order directed to paternal aunt made in relation to information about the location of the subject child – leave granted for parties to access phone recordings held by the court – orders made for the investigation of a phone in relation to outstanding recovery order.
Legislation:	Family Law Act 1975 (Cth) ss 65C, 67M
Cases cited:	KAM & MJR (1998) 24 FLR 656
Number of paragraphs:	8
Date of hearing:	23 July 2021
Place:	Canberra
Solicitor for the Applicant:	Legal Aid, ACT
Solicitor for the First Respondent:	Self-represented - assisted by Ms Mystery, Duty Lawyer
Solicitor for the Second Respondent:	Gilbert & Partners
Solicitor for the Third Respondent:	AKN & Associates
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

ORDERS

CAC 600 of 2021

BETWEEN:

MS CHE
Applicant

AND:

MR DON
First Respondent

MS TRACH
Second Respondent

MS HYUNH

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	23 JULY 2021

THE COURT ORDERS THAT:

1.I declare that Ms Hyunh is a person concerned with the care, welfare and development of X, born … 2020, and is granted leave to join the proceedings.

2.Ms Hyunh is directed to file a Response to an Initiating Application within 14 days of today's date and in default thereof the leave otherwise given will lapse.

IT IS ORDERED BY CONSENT

3.I order that pursuant to s 67M the paternal aunt, Ms Hyunh, born … 1978, provide to the Court all information she holds about the location of the child X, born … 2020.

IT IS FURTHER ORDERED THAT

4.Leave is granted to the parties or the legal representatives to access any material held by the court produced by the ACT Justice and Community Safety Directorate pursuant to orders made 23 June 2021 on condition that the only access to that material for the next 24 hours is to be exercised by the legal representatives for Mr Don and Ms Trach for the purpose of identifying any materials that might be covered by privilege and thereafter access maybe exercised generally to materials that are not the subject of any such claim. 

IT IS ORDERED BY CONSENT THAT

5.Mr Don will provide to the Registrar of the Canberra Registry of the Family Court of Australia the pin for the iPhone identified to him today.

6.The Registrar is requested to forward the phone, with the pin, to the relevant police authority for the purpose of assisting in the execution of the Recovery Order for X.

IT IS FURTHER ORDERED THAT

7.The only interrogation that may be made of this telephone is of the telephone contacts contained within the phone and of SMS and/or iMessages contained within the phone.

8.No other interrogation of the phone may be made without further order of the court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Che & Don has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. The issue currently being dealt with is one of whether Ms Hyunh is permitted to join the proceedings and whether she has standing to join the proceedings. That is an issue to be determined by the application of s 65C of the Family Law Act 1975 which sets out who may apply for a parenting order.  Relevantly in Ms Hyunh's case it sets out that any other person concerned with the care, welfare or development of the child is permitted to make a parenting application in respect of the child. 

2. The issue then is whether or not Ms Hyunh, as the aunt of the child, is a person concerned with his care, welfare and development.  That is a question that is not delineated by a bright line boundary.  That much was recognised in the case of KAM & MJR (1998) 24 FLR 656 where Justice Burr saw that the requirements to meet s 65C vary dependent upon the surrounding circumstances of a case. He determined, with respect, correctly that at its heart the question requires the assessment of the degree of strength of the nexus or concern with the care, welfare and development of the child. He further observed that there may be cases where what he described as a mere interest in, or concern about, the care, welfare and development of the child would be sufficient as to satisfy the threshold test. By way of example, he proposed a hypothetical example whereby an aunt who had no pre-existing relationship with a child would fall within the relevant category, notwithstanding that she had never met the child and lived overseas, but in circumstances where the child's parents were deceased and the aunt was willing to take on the care of the child.

3. Against the aunt here it can be said that the aunt has never met the child and the height of any contact that she has had with the child is seeing the child over Facetime, without any indication that she has interacted with the child over Facetime.  Those matters point away from the application for joinder.  So too pointing away from that application is the fact that her prime position in the proceedings as currently indicated is merely supportive of the parent’s application.  She only volunteers herself if they are deemed by the court to be inappropriate carers. 

4. There are matters however which collectively echo the issues raised by Justice Burr in his example of the aunt. Each party's case at present, if sustained, has a high potential to rule out the current parties as appropriate carers for the child. That is, if the parent's case as against the maternal grandmother is sustained then there is good reason to think that the maternal grandmother might be excluded as an appropriate carer of the child. Similarly, on the maternal grandmother's case, if sustained, there is good reason to find that the parents would not be appropriate carers of the child. It may also be observed that that occurs under circumstances where the parties’ cases are not completely mutually exclusive of each other. That is, it has been identified that this is a case in which there is the spectre of no appropriate carer being able to be found within the current parties. Under those particular circumstances the professed interest of the aunt, the connectedness of her with the child by relatedness, and her willingness to care for the child if it is required are, despite the reasonable submissions of Mr Banwell, sufficient to discharge the burden required by s 65C.

5. Accordingly, I declare that Ms Hyunh is a person concerned with the care, welfare and development of X, born in 2020, and is granted leave to join the proceedings.

6. Ms Hyunh is directed to file a Response to an Initiating Application within 14 days of today's date and in default thereof, the leave otherwise given will lapse.

   INFORMATION ORDER

7. In these proceedings application is made pursuant to s 67M for an information order to be directed to Ms Hyunh, who is the aunt of the missing child, X. In making such an order I note that the order is to be made by consent. Whilst I further note that the affidavit evidence of Ms Hyunh does not indicate any knowledge of the current whereabouts of X that there are circumstances which otherwise satisfy me that she is a person who is likely to have information about the child’s location. Those circumstances are set out in the affidavit filed in support of the Applicant’s application for the s 67M order and notably includes information whereby Ms Hyunh has sought that she and the maternal grandmother engage in mediation for the purpose of resolving the proceedings between them. It is reasonable to infer from that some degree of knowledge on the part of Ms Hyunh as to the whereabouts of X.

   IT IS NOTED THAT

8. Mr Don has identified that an iPhone recently produced to the court by the Suburb J Police as a phone that was seized from him by the Suburb J Police when he was taken into custody in Suburb G.  He has given his consent to providing limited access to that telephone for the purpose of assisting in the execution of a Recovery Order in respect of X.  The scope of the consent that he gives is that he will provide the relevant pin for the telephone, on the basis that the court will make orders providing such pin to the police and directing that the only enquiry or interrogation of the telephone in respect of the Recovery Order will be as to the contacts contained within the phone and the messages, being SMS’s, contained within the phone. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       23 July 2021