Dione & Massoud (No 3)
[2023] FedCFamC1F 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dione & Massoud (No 3) [2023] FedCFamC1F 94
File number(s): SYC 9655 of 2021 Judgment of: SCHONELL J Date of judgment: 22 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the applicant grandmother sought to join her daughter into the proceedings as an applicant – Where the application was brought on the second day of the trial – Where the respondent father opposed the application on the basis that it was not property brought – Where the children’s mother has passed away – Where having regard to the principles identified in s 69ZN of the Family Law Act 1975 (Cth), leave is granted for the applicant’s daughter to be joined to the proceedings. Legislation: Family Law Act 1975 (Cth) s 69ZN Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 21 February 2023 Place: Sydney Counsel for the Applicant: Mr Watkins Solicitor for the Applicant: Solari & Stock Lawyers Counsel for the Respondent: Mr O’Reilly Solicitor for the Respondent: One Group Legal Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 9655 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIONE
First ApplicantMS E
Second ApplicantAND: MR MASSOUD
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
22 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to make an oral application to join Ms E as a party to the proceedings.
2.Leave is granted to join Ms E as a party to the proceedings.
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 the pseudonym Dione & Massoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to two children: X born 2006 and Y born 2015. The parties, who are the children’s maternal grandmother and the children’s father, are at issue about what the living arrangements for Y should be. The parties agree that X should live with his father, that orders should be made for his father to have sole parental responsibility for X and that X should spend time with the maternal grandmother in accordance with his wishes.
This position in relation to X only became apparent during the course of the maternal grandmother’s cross-examination. In circumstances where X has been living with his father now since about June of last year and given his age, it would have been very unlikely that the Court would have made an order other than as sought by the father.
These proceedings came on quickly as a consequence of a number of traumas that these children have suffered now over a significantly long period of time. In that respect, I incorporate in these reasons the observations of the Court Child Expert, Ms O in her Family Report dated 8 February 2023:
199. [X] and [Y] are children who have experienced significant adjustments and losses throughout their life, most notably the loss of the opportunity to have a close relationship with [Mr Massoud] and experience of being parented by him during the […] years that he was incarcerated, the loss of [Ms Massoud] unexpectedly in [late] 2021, changes to their living arrangements and separation from each other. Unfortunately, the acrimonious relationship in the last year, between [Mr Massoud] and [Ms Dione], has meant that they have not been able to work together to ensure that [Y] and [X] have the best opportunity to adjust to [Ms Massoud’s] passing or co-operatively discuss the care arrangements that are in the children’s best interests. Due to the circumstances of this family, it would appear that whatever final care arrangements are put in place, the children will likely endure further losses.
It is axiomatic that these children have suffered a significant number of losses over the course of their short life. For a period of time they lost a relationship with their father because of his imprisonment. Their mother tragically died in 2021; a matter about which, from what I have read so far in the case, both children are still grieving. The applicant grandmother is quite obviously grieving the loss of her daughter and the father is having to deal with what seem to me to be quite significant problems that X has, which he says he has been hamstrung in part because of orders which have been made by the Court in the past.
On the second day of the trial, the applicant grandmother seeks to amend her relief seeking to include as a party to the proceedings her daughter Ms E. No adequate explanation is provided to the Court as to why this application is brought on the second day of the hearing. I note in fairness, being somewhat more generous than I otherwise should be to those who act on behalf of the applicant, that the Family Report was not released until I think the 10th or 11th of February 2023.
In the Family Report, it says to the following effect:
245. A significant issue in this matter is [Ms Dione’s] age. She appears to be in relatively good health at present and it would appear that she has the capacity to meet [Y’s] needs at present. However, [Y] is young and there may be changes in [Ms Dione’s] functioning and capacity to care for [Y] before he turns 18 years of age. It is noted that [Ms E] is not a party to these proceedings but that [Ms Dione] is heavily reliant on [Ms E’s] support to care for [Y]; it is likely that this will increase over time and that if [Y] was to remain living with [Ms Dione] that [Ms E] will likely take over the primary care as time goes on. If the Court was minded for [Y] to remain in [Ms Dione’s] primary care, the Court would need to be satisfied that [Ms E] is willing and suitable to play an ongoing and significant role in the care of [Y].
Therefore, it is clear from a reading of that paragraph that the Child Court Expert was concerned about Ms Dione’s age – she being approximately 74 years of age.
I am required under the legislation to make an order ultimately that is in the best interests of Y.
The principles that govern the conduct of child related proceedings are identified in s 69ZN of the Family Law Act 1975 (Cth). There are a number of core principles that are identified there. The fifth principle makes it plain that the proceedings are to be conducted without undue delay and with as little formality and legal technicality in form as possible.
I raise that because it is raised by counsel for the father quite properly that there is no application nor affidavit in support of the application for joinder. I am also conscious of the first principle, that is that the Court is to consider the needs of the child and the impact that the conduct of the proceedings may have on the child in determining the proceedings. It seems to me that I need to make a decision with the best of all evidence before me so that I can make a determination that ultimately is in the best interests of Y.
For these reasons, having regard to the principles that are identified in s 69ZN and in particular the matters raised in the Child Court Expert’s report, I propose to grant the application to join Ms E as a party to the proceedings.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 22 February 2023
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