Drummond & Hunter
[2024] FedCFamC2F 6
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Drummond & Hunter [2024] FedCFamC2F 6
File number(s): SYC 1752 of 2012 Judgment of: JUDGE STREET Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – PARENTING – adjournment application – joinder application – applications dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 4 December 2023 Place: Sydney Counsel for the Applicant: Mr T Robertson Solicitor for the Applicant: Duffy Law Group Counsel for the Respondent: Ms L Saw Solicitor for the Respondent: Legal Aid NSW Counsel for the Independent Children’s Lawyer: Ms K Conte-mills Independent Children’s Lawyer: Harb Lawyers ORDERS
SYC 1752 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUNTER
Applicant
AND: MR DRUMMOND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for an adjournment, dated 3 December 2023, is refused.
2.The application in a proceeding, dated 3 December 2023, is dismissed.
3.The Court reserves its written reasons.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 27 March 2012, and on 22 February 2023, were fixed for a final hearing today. The proceedings are ones involving a child who is now 12 years old, L, born 2011. On 3 December 2023, the paternal grandmother filed an application seeking to be joined to the proceedings that were fixed for hearing to commence today, 4 December 2023, as a result of the orders made on 22 February 2023. The respondent father failed to comply with the Court’s orders in terms of the filing of his affidavit evidence and his case outline. They both appear to have been provided on the morning of the hearing today as well as very recently, a proposed tender bundle, also, in breach of the Court’s order as to the timing of the same.
Although the applicant mother and the ICL opposed the joinder application, the paternal grandmother indicated that she was trying to apply to Legal Aid to get Legal Aid assistance and wanted the matter adjourned so that she could obtain her Legal Aid representation. The paternal grandmother identified having had a close relationship with L and wanting to ensure that if L was not able to see his father, that the paternal grandparents and extended family could spend time with L. The Court raised with the paternal grandmother whether she wished to pursue the application given the obvious stress that it would further impose on the child to be involved in protracted proceedings and the further steps involving a further family report and ICL, who was likely to be involved.
The paternal grandmother identified a desire to press ahead for her application for joinder. The paternal grandmother explained that it was only last week that she became aware of the ability to seek joinder. From the submissions of the respondent father, it is apparent it was the respondent father’s counsel that identified the potential for the joinder last week as a result of the respondent’s counsel’s first involvement in the case. The paternal grandmother identified having concerns about the parenting capacity of the applicant mother as well as wanting to ensure an ability to maintain her family’s connection with the child and identified that the child was of indigenous origin on his paternal side.
The Court raised with the paternal grandmother whether she would wish to press ahead with her application even if it was the case that the child had expressed a view he wanted to see his father in accordance with his wishes and the paternal grandmother indicated that she wished to do so.
The procedural issues in relation to a Part 7 proceeding are identified in section 69ZN of the Family Law Act 1975 (Cth) (“the Act”). The first principle is to consider the needs of the child and the impact that the conduct of the proceedings might have on the child. The second principle is one concerning the Court’s management of the conduct of the proceedings. The third is safeguarding the child and preventing family violence. The fourth principle is claimed to promote cooperative and child-focussed parenting, and the fifth is to conduct the proceedings without undue delay and as little formality and technicality as possible. In addition to section 60ZN of the Act, in relation to the procedural nature of Part 7 proceedings are the objects and principles identified in section 60B of the Act, and in relation to the making of orders under Part 7, the paramount consideration is the best interests of the child.
Ms Saw, on behalf of the respondent, put submissions that there were issues of a nature in relation to the mother’s parenting that would be able to be more fully explored if the proceedings were adjourned and identified steps allegedly not taken by the applicant mother, and sought to support the joinder application as being in the best interests of the child. In addition to the above principles and objects and principles to which the Court has referred, the Court also has the paramount purpose identified in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which is as follows:
Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1:See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court's overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia
The Court has also taken into account the law in relation to parenting under Part 7 as identified in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87].
The paternal grandmother’s affidavit identified the history of involvement with the child as well as her own background identifying as an indigenous woman and, also, identified the intellectual disability and medical condition suffered by the respondent father and his difficulty in cooperating and following instructions as well as the role that she played in assisting him. The paternal grandmother identified that the respondent is prescribed medicinal cannabis and identifies a willingness to do any driving necessary to facilitate orders made by this Court so that to start seeing L, again. In the context of the affidavit, that part appears to be directed to facilitating orders that might be made for the benefit of a meaningful relationship between the child and the father.
The paternal grandmother also identified a willingness to assist in paying for the drug testing for the respondent and set out the background in relation to L’s relationship with his paternal family, and identified the view that the child was happy spending time with the paternal family. There were views expressed as to the applicant unreasonably stopping time on six occasions between 2014 and 2020, as well as stopping time after what was said to be a minor car accident involving the respondent father and child, in 2020. The paternal grandmother made reference in her affidavit to a communication from D Family Services, dated 1 June, and a recommendation for L to be taken to a medical practitioner.
The paternal grandmother sought to express the view that there were mental health concerns and the need to be ongoing professional support for L and contended that could only happen if the paternal grandmother was joined. It was also suggested that the applicant mother needed to undergo a mental health assessment and it was asserted that the respondent was capable of meeting the parenting needs of the child. Reference is made to rebuilding the relationship with the child requiring a careful approach and wanting to reconnect the child with the paternal family. The paternal grandmother asserted a comprehension of the importance of prioritising the child’s needs and wishes over the needs and wishes of the father.
The affidavit identified a desire to ensure that the paternal grandparents and extended family could spend time with L and wished to be independently represented to seek legal advice. The paternal grandmother indicated that if she was not joined, she would still want her affidavit read in the substantive proceedings. It is apparent from the material that has been produced by the ICL that the child has expressed the view that he only wishes to see the respondent in accordance with his wishes. Given the age of the child, those are views that are likely to be given considerable weight after the two primary considerations in respect of the additional considerations, under section 60CC of the Act.
The Court is of the view that adjourning the proceedings at this late stage is likely to expose the child to further stress and potential psychological harm that is not in the best interests of the child. The child has been the subject of proceedings since 2012. There is an obvious further stress and strain on the child that would be imposed by the protraction of the proceedings and the inevitable adjournment that would result from the joinder and the protraction of the proceedings, potentially, by a further year. If the Court took that course, it would inevitably expose the child to the need to interact with a further family report writer given the very limited information provided in the family report which simply identifies that the relationship between the child and the paternal family are not close, according to the child in the interacting with the family report writer.
The child’s views in another years’ time will almost inevitably be likely to dictate the outcome of the proceedings, but to expose the child for the need to be further involved with a family report writer and further involved with the ICL and further involved in contentious proceedings exposes the child to an unnecessary potential risk of psychological harm that could be avoided by refusing the application for adjournment made by the paternal grandmother and dismissing the application in a proceedings. The Court is of the view that the impact of an adjournment on the child in accordance with the first principle weighs against an adjournment for permitting the joinder application at this very belated stage.
The Court is also of the view that the second primary consideration in respect of section 60CC(2) of the Act, to which greater weight must be given, under section 60CC(2)(a), weighs in favour of refusing the adjournment and dismissing the application for joinder. As identified, the Court has the benefit of views expressed by the child through the ICL that he sees the father in accordance with his wishes. Given his age, it is likely that would be a view that would be the subject of great weight. In relation to the nature of the relationship, it is apparent that the child in the family report only addressed peripherally the relationship not being close. The paternal grandmother asserts the contrary.
To compel the child to further participate in the proceedings at the behest of the paternal grandmother may further undermine the relationship between the child and the father. The Court has also taken into account that there has been a failure on behalf of the father both to spend time with the child and communicate with the child in accordance with orders that have been made. Although, the Court accepts that the recent suspension was a result of the supervised centre taking the view that it was not in the interests of the child to facilitate supervised time.
The Court has taken into account that the child is of indigenous origin and appreciates the important role generally played of the maternal grandmother, but which is also capable of being performed by a paternal grandmother. However, in the circumstances of this case where orders were made in February for the purpose of the final hearing, the further delay and stress on the child and, indeed, both the applicant and the respondent weigh against granting the adjournment or permitting the joinder. The Court was firmly of the view that the adjournment for joinder would not advance the objects and principles identified in section 60B of the Act is not in the child’s best interests and is not warranted in the interests of the administration of justice at this very belated stage of the proceedings.
The Court has also taken into account the ability to read short reasons, in section 69ZL of the Act. It is for these reasons, the Court refused the adjournment application in respect of the application in a proceedings, filed 3 December 2023, and it is for these reasons that the Court dismissed the application in a proceedings, dated 3 December 2023.
The Court was satisfied that it was in the best interests of the child to pronounce orders and reserve written reasons.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 February 2024
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