Pagan and Beattie - [2017] FCCA 857

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGAN & BEATTIE

[2017] FCCA 857

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application by maternal grandfather and step-grandmother to intervene in parenting proceedings – standing – whether leave to intervene should be granted.

Legislation:

Family Law Act 1975, ss.65C, 92

Federal Circuit Court Rules 2001, r.11.03
Family Law Rules 2004, r.6.05

Applicant:

MR PAGAN

Respondent:

MS BEATTIE

File Number:

PAC 5622 of 2016

Judgment of:

Judge Obradovic

Hearing date:

6 April 2017

Date of Last Submission:

24 April 2017

Delivered at:

Parramatta

Delivered on:

3 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Maddox

Solicitors for the Applicant:

Puleo Lawyers

Appearing for the Respondent:

Ms Wrmalaratne

Solicitors for the Respondent:

Rowley & Ross Lawyers

ORDERS

The Application in a Case filed 2 February 2017 by Mr R and Ms M is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pagan & Beattie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5622 of 2016

MR PAGAN

Applicant

And

MS BEATTIE

Respondent

REASONS FOR JUDGMENT

Introduction

On 30 November 2017, the Applicant father commenced proceedings for parenting orders in respect of the parties’ only child, X born on (omitted) 2014. The Respondent to those proceedings is the mother of the child.
By way of Application in a Case filed 2 February 2017, Mr R and Ms M sought leave to be joined as parties to the proceedings. Mr R is the paternal grandfather of the child, and Ms M is his wife (together referred to as “paternal grandparents”).
Section 65C provides as follows:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) the grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Mr R being the paternal grandfather has standing to make an application for parenting orders. Ms M is not biologically related to the child and therefore not a ‘grandparent’. She may be a person concerned with the care, welfare and development of the child, however, there is no evidence from Ms M on the issue (or at all). The Affidavits of the paternal grandfather make various assertions about the involvement of both himself and Ms M in the child’s care from time to time. Prima facie also Ms M has standing to make an application for parenting orders being a person concerned with the care, welfare and development of the child.
The decision as to whether the paternal grandparents should be permitted to intervene in the proceedings is a discretionary matter. Section 92(1) of the Act states that any person may apply for leave to intervene in the proceedings and that the Court may make an order entitling that person to intervene.
Rule 11.03 of the Federal Circuit Court Rules sets out the relevant procedure for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pagan and Beattie

Details

AGLC: Pagan and Beattie [2017] FCCA 857
Case: [2017] FCCA 857
Decision Date: 3 May 2017

CaseChat Overview and Summary

The proceeding concerned an application filed by Mr R and Ms M, seeking to set aside a subpoena issued to them by the respondents, Pagan and Beattie. The applicants sought to resist the subpoena on the grounds that it was oppressive and an abuse of process. The matter came before Judge Obradovic in the Supreme Court of Victoria.

The central legal issue before the Court was whether the subpoena issued to Mr R and Ms M was properly characterised as oppressive or an abuse of process, thereby warranting its setting aside. This required the Court to consider the principles governing the issuance and enforceability of subpoenas in civil proceedings, particularly in circumstances where the subpoenaed parties are not themselves parties to the substantive litigation.

Judge Obradovic dismissed the application, finding that the applicants had not established that the subpoena was oppressive or an abuse of process. The Court applied the established principles that a subpoena should not be set aside merely because it imposes some burden on the recipient, and that the threshold for demonstrating oppression or abuse of process is a high one. The Court was not satisfied that the subpoena sought irrelevant material or was issued for an improper purpose.

Consequently, the application filed by Mr R and Ms M was dismissed.

Orders

Orders of the court

The Application in a Case filed 2 February 2017 by Mr R and Ms M is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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