Pagan and Beattie (No.2)

[2017] FCCA 1402

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGAN & BEATTIE (No.2) [2017] FCCA 1402

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

Cases cited:
Wayne & Dillon & Dillon [2008] FamCAFC 204

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: 4 May 2017

Delivered at: Parramatta

Delivered on: 7 July 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 Beattie and Ms M Beattie is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pagan & Beattie (No.2) 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 2016, 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. A recovery order was made by this Court on 21 December 2016 in respect of the child.

2.By way of Application in a Case filed 2 February 2017, Mr R Beattie and Ms M Beattie sought leave to be joined as parties to the proceedings. Mr R Beattie is the maternal grandfather of the child, and Ms M Beattie is his wife (together referred to as “maternal grandparents”).

3.On 3 May 2017, the Application in a Case filed by Mr R Beattie and Ms M Beattie on 2 February 2017 was dismissed.

4.On 9 June 2017, by consent and pursuant to Rule 16.05(2) of the Federal Circuit Court Rules 2001 the order of 3 May 2017, dismissing the Application in a Case was set aside.

5.The Applicants in that Application in a Case were directed to file submissions in support of their application for joinder by 4pm on 16 June 2017.  Those submissions were sent to the Registry by post under cover of letter dated 14 June 2017 and received by the Court on 19 June 2017.

6.By way of letter dated 19 April 2017 sent to the Court’s Associate, the solicitors for the mother clarified 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.

7.Submissions made on behalf of the father were received by the Court on 24 April 2017 by email to the Court’s Associate.[1]

[1] There was an order for submissions to be filed and served

8.On 6 April 2017, the Court made orders directing the Respondent’s to file and serve written submissions in respect of the Application in a Case within 28 days. As at close of business on 4 May 2017 (being 28 days after the making of that order) no submissions had been filed with the Court by the maternal grandparents, albeit they were sent via email to the Court’s Associate after close of Registry hours on that day, by which stage Judgement in the matter had already been delivered – although those orders have now been set aside.  

9.The maternal grandparents have filed two Affidavits[2] which the Court has had regard to.

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

10.The application by the maternal grandparents is opposed by the father.

11.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.

12.It was submitted on behalf of the Respondent grandparents:

a)That they have two options – either to commence separate proceedings or file an application seeking to be joined; and

b)That they have “the right and standing to commence separate proceedings pursuant to section 65C”. 

No authorities were provided for these propositions.

13.If parenting proceedings are already on foot in relation to a particular child, then the proper way to proceed in respect of an application for parenting orders in relation to that child is by seeking to intervene in those proceedings and not by commencing fresh proceedings. Indeed, if fresh proceedings were commenced in such circumstances, there would no doubt be a strong argument for costs thrown away as a result of any duplication of proceedings.

14.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.

15.Rule 11.01 of the Federal Circuit Court Rules 2001 reads:

(1)Subject to any order of the Court, a person whose participation is necessary for the Court to completely determine all matters in dispute in a proceeding must be included as a party in the proceeding.

16.Rule 11.03 of the Federal Circuit Court Rules 2001 sets out the relevant procedure for making the application to be included as a party to the proceedings.

17.The decision as to whether the maternal 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.

18.Mr R Beattie being the maternal grandfather has standing to make an application for parenting orders. Ms M Beattie, on the other hand, 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 Beattie on the issue (or at all).

19.The Affidavits of the maternal grandfather make various assertions about the involvement of both himself and Ms M Beattie in the child’s care from time to time. As such, prima facie Ms M Beattie might also have standing to make an application for parenting orders being a person concerned with the care, welfare and development of the child.

20.The Court finds that although there is a strong prima facie argument that both maternal grandparents have standing to apply for orders, to date they 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, with the exception of the period from early October 2016 to the execution of the recovery order made on 21 December 2016.   

21.The maternal grandparents’ participation is not necessary for the Court to completely and finally determine all matters in dispute.

22.In that regard, the Court respectfully adopts what was said by Warnick J, sitting as the Full Court constituted by a single Judge,[3] in respect of the word “necessary” as used in rule 11.01(1):

The word “necessary” ... must mean something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.

[3]   Wayne & Dillon & Dillon [2008] FamCAFC 204 at [18]and [19].

23.The Affidavit of the maternal grandfather filed 5 April 2017 includes a text message from the mother dated 16 January 2017, stating that “It would be great if you could all write an affidavit.” Certainly, the maternal grandparents are potential witnesses in the mother’s case in respect of the best interest considerations.

24.The mother’s evidence[4] is that she is aware of the joinder application and that when she is able to have the child, it is her intention to further the child’s 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, albeit the child had not spent any time with the grandparents after the recovery order had been made on 21 December 2016.

[4] Contained in her affidavit filed 5 April 2017

25.There is no evidence to suggest that the mother would not continue to facilitate a relationship between the child and the grandparents in accordance with her expressed intention. The evidence in the maternal grandparents’ case does not suggest, in any way, that since the recovery order the maternal grandparents have requested time with the child which the mother has refused to facilitate or has indicated that she would not facilitate if the child was to spend time with her.

26.It was submitted on behalf of the maternal grandparents that:

“It is clear by the statement in the letter dated 19 April 2017 from the solicitors for the mother to Her Honour’s Associate that the Mother does not seek to facilitate the Grandparents spending time with the child. It states that she …is happy for that issue to be left entirely to the Court.”

27.This is not a correct representation of what the letter stated. The relevant paragraph in the letter read:

“Our instructions are that our client neither opposes nor consents to the joinder and is happy for that issue to be left entirely to the Court.”

28.There is nothing in the letter to suggest that the mother would not facilitate the maternal grandparents spending time with the child.

29.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 has expressed an intention to facilitate a relationship between the child and members of her family. The Court further notes that the mother’s Response filed in the substantive proceedings seeks orders for the child to live with her on a final basis and spend time with the father.

30.In respect of the maternal grandparents’ submission that they have not had the benefit of receiving either the mother’s Response or Affidavit filed 5 April 2017, no explanation is offered as to whether such documents were requested, why they might be entitled to receive such documents or why it would be appropriate for those documents to be made available to them.

31.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. Furthermore, the maternal grandparents were represented in Court on the day that the interim orders as between the parents were made.

32.The father further 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. 

Conclusion

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 7 July 2017