Lazar and Lazar-Shaw and Ors

[2015] FamCA 42

FAMILY COURT OF AUSTRALIA

LAZAR & LAZAR-SHAW AND ORS [2015] FamCA 42

FAMILY LAW – PRACTICE AND PROCEDURE – Application to intervene dismissed.

APPLICANT: Ms Lazar

FIRST RESPONDENT: Mr Lazar-Shaw

SECOND RESPONDENT: Mr Rayne

INTERVENER: Ms Cotterill

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 4795 of 2011

DATE DELIVERED: 29 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 January 2015

REPRESENTATION

APPLICANT: In person

FIRST RESPONDENT: In person

COUNSEL FOR THE SECOND RESPONDENT: Ms D E Pendergast

SOLICITORS FOR THE SECOND RESPONDENT: Andersons Solicitors

INTERVENER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr A B George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAYER: Legal Aid Queensland

Orders

1. The Application in a Case filed on 29 January 2015 by the Applicant Paternal Grandmother to intervene in the proceedings is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4795 of 2011

Ms Lazar

Applicant

And

Mr Lazar-Shaw

First Respondent

And

Ms Rayne

Second Respondent

And

Ms Cotterill

Intervener

Ex Tempore

REASONS FOR JUDGMENT

1. I have in this matter an Application brought by M’s (“the child”)’s paternal grandmother seeking today, the first morning of the trial, leave to intervene in the proceedings to seek parenting orders in relation to him.  A perusal of the Application in a Case and the affidavit relied upon in support of the same reveals that she would seek what are termed “visitation rights” in relation to the child and, in particular, that she would seek to be able to have him spend time with her one weekend a month and for one week of the school holidays.  The Applicant lives in Town A in the Darling Downs.

2. As would be apparent from regard to the very brief interchange between the Court and parties thus far, the proceedings between the child’s parents are longstanding.  The first Order in relation to the child was made by Federal Magistrate Howard (as his Honour then was) on 20 June 2011. 

3. A number of Orders have been made since that time as a consequence of various actions taken by each of the child’s parents.  An Independent Children’s Lawyer has been involved in the matter for some significant period of time.  Additionally, a number of reports have been prepared for the Court’s assistance:  two from Ms B, a Family Consultant, and, more recently, by Ms C, a Family Consultant.  Those reports are in evidence before me as a consequence of the tender and reading respectively of them by Counsel for the Independent Children’s Lawyer. 

4. A perusal of those documents makes it clear that, understandably, there has been no involvement by the authors of the reports with the Applicant. 

5. Counsel for the mother takes objection to the Court permitting the Applicant  to seek orders at this late stage.  She does so on the bases that:  notice was only received this morning of that intention; to allow intervention at this late stage would, in essence, unfairly prejudice the mother because it would deprive her of the opportunity to take issue with particular aspects of capacity which she asserts relate to the Applicant and to investigate the same through issue of subpoena - no doubt intended to seek to obtain evidence to support such assertions. 

6. I am not persuaded that it is appropriate at this late stage of proceedings to permit intervention by the Applicant.  It is, of course, always open to her, appropriately, to seek orders in relation to the child but I am well persuaded, particularly given the history of the matter in terms of the length of time for which it has been on foot, that there has been every opportunity for her to approach the Court to seek particular orders in relation to the child before this morning. 

7. It is also clear that the Applicant says she spent or had the opportunity to spend time with the child during the period of time he was within his father’s care.  As I understand the evidence, that ended more than 12 months ago, so there has been at least 12 months during which the Applicant could have filed an Application in a Case seeking to intervene.  Had she done so at such a time, it would have been possible for the investigations raised by Counsel on behalf of the mother to have been undertaken and it would also have been possible for the Applicant to have been involved in more recent Family Report interviews conducted by Ms C in the course of the preparation of the most recent Family Report. 

8. I am not persuaded that it is appropriate at this point in time, on the first morning of trial, to grant the Application and, for the Reasons just given, I dismiss the Application by the paternal grandmother seeking leave to intervene at this stage.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 January 2015.

Associate:                 

Date:    29 January 2015