Grant and Aiden (No. 7)

[2017] FamCA 1168

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 7) [2017] FamCA 1168

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to file an Application in a Case – leave to intervene in the proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The mother’s oral application made this day for leave to file an Application in a Case is dismissed.

2. The oral application of the maternal grandmother made this day for leave to intervene in the proceedings is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No. 7) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The final hearing of this matter commenced before me in March 2017 and proceeded thereafter over some nine days, albeit with significant delays in between.  On the recommencement of this matter this day, the mother indicated that last week she had attempted unsuccessfully to file an Application in a Case but had been advised by a Registrar of this Court that she would need to seek the Court’s leave to file that application in a case.  She had not at that time provided copies of that Application in a Case, or the Affidavit in support of same, to either counsel for the father or the Independent Children's Lawyer.

2. Although I was initially keen to recommence the final hearing, I ultimately allowed the mother time to provide a copy of the proposed Application in a Case, and the Affidavit in support of same, to counsel for the father and Independent Children's Lawyer, and allowed them time to consider those documents before hearing both the mother’s and their submissions with respect to her application that she be granted leave to file the Application in a Case.

3. The mother in the proposed Application in a Case seeks the following orders:

   (a)unsettled questions of law be answered before the matter proceeds; 

   (b)the application filed by the father be summarily dismissed;

   (c)the applicant father be declared a vexatious litigant under section 102Q of the Family Law Act (Cth) (“the Act”);

   (d)the mother to proceed undefended;

   (e)the father pay the mother’s costs.

4. The thrust of the mother’s case is firstly that the father’s application should be summarily dismissed and she should be permitted to proceed on an undefended basis because of what she describes as a miscarriage of justice arising from the hearings before and orders made by the Senior Registrar on 24 and 31 May 2016 and 1 June 2016.  However, I note, as submitted by counsel for both the father and the Independent Children's Lawyer, on 19 August 2016 the mother filed an Application for Review of the orders made by the Senior Registrar, but on 6 October 2016 sought the Court’s leave, which was granted, to withdraw that Application for Review.

5. I note that the mother’s Application in a Case filed 23 August 2017 to have the orders made by the Senior Registrar on 6 October 2016 discharged and the previous orders providing for the child to live with her reinstated was dismissed by Austin J on 1 September 2017.  His Honour found that application to be baseless, similarly referring to the fact that the mother’s remedies lay in a review or an appeal of the Senior Registrar’s orders.  In my view, the Application in a Case the mother now seeks to file is similarly without merit. 

6. What the mother appears to be submitting is that the child should never have been removed from her care and that accordingly she has been prejudiced by all that has followed throughout the subsequent proceedings.  That ignores the fact, as highlighted by Austin J in his ex tempore Reasons for Judgment delivered on 1 September 2017, that the mother had remedies available to her but chose not to pursue them. 

7. It also does not explain why she would make that application now, almost 18 months after the orders were made and some eight months since the final hearing commenced.  Even if it were correct, as the mother submits, that she did not know what went on at the hearings before the Senior Registrar until after the final hearing before me commenced, that would not explain why she had not sought to file her application until last week. 

8. The order sought with respect to the questions of law needing to be answered appears to be based upon what the mother says is the need for the Court to apply what she called the Charter of Human Rights and Responsibilities before the matter proceeds, and in particular in relation to what she says has been a breach of the child’s human rights as a result of the consequences of those orders made by the Senior Registrar for a recovery order. 

9. Inherent in the mother’s application is that this final hearing cannot proceed, which is consistent with her indication that she has not notified various of her witnesses or made inquiries of them as to their availability for cross-examination. The mother’s submissions also ignore the very nature of the proceedings that are listed before me. This is a final hearing at the conclusion of which, and after the evidence is tested, the Court will make a decision based on what it determines is in the child’s best interests, having regard to the provisions of the Act and, as it refers to, the United Nations Convention on the Rights of Children.

10. The final hearing affords the mother the opportunity to present her case, to canvas the issues, including the history of the matter, and to test the father’s case.  And I note that the mother has in fact already cross-examined the father at length.  What is of particular concern is that the child the subject of these proceedings is now 11 years of age, and that although her parents separated when she was only an infant, there have been ongoing proceedings for a significant period of her young life.

11. Division 12A of the Act sets out the principles the Court must follow when conducting child-related proceedings. The first of those principles is that the Court must consider the needs of the child concerned and the effect the conduct of the proceedings may have on the child. Although the evidence of the family consultant has yet to be tested, she raises significant concerns about the impact of the ongoing conflict upon the child.

12. On almost every occasion when this matter has been adjourned part-heard, the mother has filed further applications shortly before the recommencement of the final hearing which if successful, would have inevitably led to either the abandonment of the final hearing or at least further delays.  That would similarly appear to be what the mother now seeks by way of her proposed Application in a Case.  I am satisfied that further delays would not be likely to be in this child’s best interests, and in all of the circumstances, do not propose to grant the mother leave to file her Application in a Case. 

13. Also last week, before the recommencement of the hearing before me, the maternal grandmother filed a notice or attempted to file a Notice of Entitlement to Intervene in the proceedings.  The maternal grandmother, not being a person entitled to intervene without leave, was not permitted by the Melbourne Registry to file the Notice.  If allowed to intervene, the maternal grandmother seeks orders that the child spend one week of each school holiday period with her.

14. Although the maternal grandmother’s submissions suggested that she did not really understand that if granted leave to intervene, she would be a party to the proceedings, or that she in fact wanted to be a party to the proceedings, and she said would prefer to be a witness, after speaking to the mother she indicated that she did wish to intervene in the proceedings.  She offered little or no explanation as to why she had not sought leave to intervene prior to the commencement of the final hearing or before that commencement, and insofar as she suggested it was because the father kept changing his application, I note that the father’s proposal has not changed since the commencement of the final hearing.

15. The child has been living with the father since June 2016.  Although the maternal grandmother says that after the child was placed in the father’s care, she wrote a letter to the child which was returned to her by the father, that was in 2016, and she concedes that she has not taken any other steps, let alone brought an application for leave to intervene in the proceedings, since then, nor has she sought any contact with the child.  What is of particular concern is that the maternal grandmother said that if granted leave to intervene in the proceedings, she was not ready to proceed and would need time to prepare. 

16. In any event, as previously referred to, the father has already been cross-examined at length, as has his new partner and some of the mother’s witnesses.  Although the principles which apply to the conduct of proceedings in child-related matters require that proceedings are to be conducted with as little formality and legal technicality as possible, to allow the maternal grandmother to intervene at this stage would, in my view, make the orderly conduct of this final hearing virtually impossible and unnecessarily delay the determination of the matter.

17. The maternal grandmother’s application is, in my view, also premature.  If the Court were to accede to the mother’s application, the child would be returned to the mother’s care in North Queensland, where the maternal grandmother also lives.  There is nothing to suggest that the child would not be able to spend time with the maternal grandmother in those circumstances.  In the event that the mother’s application is not successful and the maternal grandmother seeks her own orders for time with the child, that is a matter that the Court could deal with at that time.  In all of the circumstances, I do not propose to grant the maternal grandmother’s oral application for leave to intervene in the proceedings. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 November 2017.

Associate: 

Date:  6 July 2018