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

1. 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

1. 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.

2. 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”).

3. 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.

4. 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.

5. 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.

6. Rule 11.03 of the Federal Circuit Court Rules sets out the relevant procedure for making the application to be included as a party to the proceedings. It is similar to Rule 6.05 of the Family Law Rules, but not identical in its terms.

7. On 6 April 2017, the Court made orders directing the Applicants on the application to intervene to file written submissions in support of that application within 21 days. As at close of business on 27 April 2017 (being 21 days after the making of that order) no submissions have been filed nor otherwise received by the Court.

8. The paternal grandparents have filed two Affidavits[1] which the Court has had regard to. However, in light of the fact that no submissions were made by the Applicants at all in relation to their application, the Court is left in some difficulty in understanding their case.

   [1] Affidavit of Mr R filed 2 February 2017 and Affidavit of Mr R filed 5 April 2017

9. The Orders of 6 April 2017, also directed the Respondents to file written submission in relation to the paternal grandparents’ application within 28 days.

10. By way of letter dated 19 April 2017 sent to my Associate, the solicitors for the mother clarify that the mother’s position is that she “neither opposes nor consents to the joinder and is happy for that issue to be left entirely to the Court.” Accordingly, the solicitors have been instructed to make no submissions in support or against such an order.

11. The application by the paternal grandparents is opposed by the father.  Submissions made on behalf of the father were received by the Court on 24 April 2017 by email to my Associate.

12. In a nutshell, the father objects to the order permitting the maternal grandparents to be joined on the basis that the mother and the maternal grandparents have a relationship which would facilitate the child spending time with the grandparents.

13. The Court finds that to date the maternal grandparents have not had any significant involvement in the care, welfare and development of the child. Indeed, they have spent very limited time with the child since she was born. 

14. The mother’s evidence[2] is that when she is able to have the child, it is her intention to further her relationship with all members of the mother’s family. The evidence of the maternal grandparents is that such a relationship had to date been facilitated by the mother. There is no evidence to suggest that this will not continue.  There are currently interim orders for the child to live with the father and spend time with the mother. The Court finds that the mother will facilitate a relationship between the child and members of her family as appropriate.

    [2] Contained in her affidavit filed 5 April 2017

15. The maternal grandfather deposes to a fear in his Affidavit filed 5 April 2017 that because the mother had not taken any part in the proceedings, the maternal grandparents were concerned that the child would not have the benefit of knowing her maternal family. Given that the mother is taking part in the proceedings and that the mother and the father have agreed to interim parenting orders, the Court finds that the maternal grandparent’s concerns are unfounded.

16. In addition, the father argues that the cost to him would be significantly increased as he is privately funded in the proceedings, whereas the mother is legally aided. The Court is of the view that there is significant force in the father’s arguments. 

17. For all of the reasons outlined above, the Court finds that the child’s best interest will not be promoted by an order permitting the maternal grandparents to intervene in the proceedings. As such, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  3 May 2017