R & M - [2002] FMCAfam 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & M

[2002] FMCAfam 279

FAMILY LAW – Parenting orders – residence – whether the applicant is a person concerned with the care, welfare or development of the child the subject of the proceedings.

PRACTICE AND PROCEDURE – Standing in family law proceedings – parenting orders.

Family Law Act 1975 (Cth), s.65C
Federal Magistrates Court Rules 2001 (Cth)

Chung v University of Sydney [2001] FMCA 94
Kam v MJR (1998) 24 FLR 656

Applicant:

Respondent:

File No:

NCM2918 of 2002

Delivered on:

30 August 2002

Delivered at:

Newcastle

Hearing Date:

30 August 2002

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr D Coyle

ORDERS

The application is dismissed.
There is no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM2918 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application by TR (“the applicant”) for parenting orders in relation to DM, born 19 May 2001 (“the child”). The application, in effect, seeks a residence order in favour of the applicant. The respondent to the application TM, the child's mother.
The application comes before the Court in tragic circumstances. Proceedings were previously on foot between the parents of the child, DO and TM. DO tragically suicided, I understand, last week. The applicant was assisting DO in the proceedings he was undertaking.
I disposed of the previous proceedings by making a residence order in favour of the mother on 26 August 2002. The effect of the application now brought by the applicant would be to overturn that residence order.
The present application came before me in the duty list on 26 August 2002. It had at that stage not been served on the respondent. The application was subsequently served on Mr Coyle, solicitor for the respondent, and the hearing before me today is therefore the first court date in relation to this application since it was served.
It was immediately apparent today that there is a threshold issue which I should determine. That is whether the applicant is a person who may bring an application for parenting orders under the Family Law Act 1975 (Cth) (“the Family Law Act”). Section 65C of the Family Law Act provides that 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) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
It is clear that the applicant could not satisfy paragraphs (a), (b) or (ba) of s.65C.
The question is whether applicant could satisfy s.65C(c). Mr Coyle, for the respondent mother, has orally applied for an order dismissing the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the application discloses no reasonable cause of action. That application actually seeks a finding that the applicant lacks standing under the Family Law Act.
Mr Coyle has drawn to my attention the commentary on s.65C contained in the Butterworth's Family Law Service on page 1294.22. That commentary reads:
The equivalent provision in s.65C prior to the operation of the Family Law Reform Act 1995 was “(c) any other person who has an interest in the welfare of the child”. It is not clear why this wording was changed. The new para (c) uses the awkward phrase “concerned with the welfare…”. It might perhaps be thought that the use of this phrase, rather than “has an interest in” or “concerned about” might indicate that a person who has played no actual part in the care of a child is unable to apply for parenting orders, no matter how concerned and suitable that person might be. For example, a grandmother who has come to Australia for the specific purpose of taking care of a child whose parents are unable to care for the child might be met with the argument that she cannot seek a parenting order because she is not a person who is concerned with the child.
I pause at that point to note that grandparents are specifically dealt with in s.65C(ba), and so the example given by the learned authors to illustrate their view of the difficulty or potential difficulty with the phraseology of the paragraph is not apposite.
The learned authors go on to assert that it is unfortunate that the “perfectly satisfactory” phrasing of the former s.63C was not retained. They suggest that the better view is probably that this is merely an infelicitous phrase and that there was no intention to limit the category of people who can apply under s.65C in this way. They add that such a limitation would seem to have no sensible basis.
With respect to the learned authors of the Butterworths service, it does seem to me that Parliament has purposefully changed the wording of paragraph (c) of s.65C, and that the effect of that change in wording is indeed to confine the class of persons who are entitled to make an application for a parenting order. It seems to me that the obvious intention of Parliament was to exclude from the class of persons who may make an application for a parenting order persons who might be described as mere busybodies, or persons who may have a sincere interest in the welfare of a child but who have had no prior involvement with or connection to the child.
To put perhaps an extreme example, persons attending court to watch proceedings may develop an interest in a particular child's welfare, but that obviously could not of itself provide standing to bring their own application should the original applicant be unable to continue.
The learned authors refer to only one case relating to the interpretation of s.65C(c), and that is the case of Kam v MJR (1998) 24 FLR 656. In that case His Honour Burr J held that a woman who had been a friend and partner of the child's mother was entitled to make an application over the objections of both the mother and the child's father. The applicant had had previous contact with the child and had undertaken aspects of a carer's role in relation to her. Burr J held that there may well be circumstances where a mere interest in or concern about a child will be sufficient to satisfy the threshold test in s.65C. His Honour held that s.65C creates a threshold test to be determined on the individual facts and circumstances of each case. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child.
It is apparent from the short commentary on the case of Kam v MJR that the applicant in that case had more than a mere interest in or concern about the child there in question. The applicant had been involved with the child in a carer's role. There will be other cases that can be readily distinguished from the decision in Kam v MJR where the applicant is unable to demonstrate any prior role in the care, welfare or development of the child, although they may have a general interest in the welfare of the child. Each case will obviously have to be determined on its own facts. Anyone can file an application for a parenting order and provided that one of the three elements of the threshold test in s.65C(c) can be satisfied, the application can proceed.
In this matter the applicant, in addition to her application, has put forward two short affidavits and I have permitted her to make somewhat discursive submissions from the bar table to seek to explain her standing to bring her application. The applicant has told me that she met the late DO in January this year and that she lives diagonally opposite his residence. She tells me that she had been assisting him in the pursuit of his former proceedings in this Court. Based on what she has told me, I form the view that she has been acting in the capacity of a McKenzie friend.
I find that that has been the limit of the applicant’s involvement with the child. She is passionately concerned about the welfare of the child, and I am satisfied that that is a genuine concern. It is proper and reasonable that neighbours and persons who deal with others in a social capacity are concerned about the welfare of children. That, however, does not establish that they have standing to bring proceedings under the Family Law Act. The applicant obviously has a strong sense of loyalty to the late DO and it seems to me that she may have brought this application in an attempt to do justice to the proceedings that he brought.
I do not know whether those proceedings would have been successful or not had DO lived. It may be that they would have been. It may be that there are objective concerns about the welfare of the child although I have seen no reliable evidence of any. In any event, the Court has already made a residence order in favour of the mother and there are other procedures that could be followed to protect the welfare of the child if it is in danger. For example, the Department of Community Services has a responsibility under state law to deal with threats to the welfare of children, and those responsibilities can be enlivened by any person.
In the case of Chung v University of Sydney, [2001] FMCA 94, I dealt generally with the operation of rule 13.10 of the Federal Magistrates CourtRules. I considered the circumstances in which it would be appropriate to dismiss an application summarily on the basis that no cause of action is disclosed. I applied the same considerations in this case. The upshot is that I should only dismiss the application if I was satisfied that the application is doomed to fail. In addition, the applicant is self represented, and in those circumstances I should consider, quite apart from anything that was put to me by the applicant, whether it is reasonably possible that material could be put before the Court to provide substance to the application.
My conclusion is that the application is doomed to fail and that accordingly, I should dismiss it. That is not because I am satisfied that nothing could be put before the Court relevant to the welfare of the child. It is because it is abundantly clear to me that the applicant is not a person who is entitled to put that material before the Court. It may be that someone else is so entitled. The applicant is concerned about the welfare of this child but she has not been concerned with the welfare of the child. In my view, the distinction is vital in order to determine the issue of standing under s.65C(c). Having had no prior involvement with the care, welfare or development of the child, and being not otherwise concerned with the child’s care, welfare or development, the applicant has no standing to bring this application.
In the circumstances of this matter it seems to me to be in the applicant’s interests and in the interests of the other persons involved, including the mother, that these proceedings be brought to a conclusion as quickly as possible. Therefore I will dismiss the application.
Mr Coyle has sought an order for costs. I have decided that no order should be made, first noting that under the Family Law Act prima facie parties should bear their own costs. Secondly, these proceedings, while ill founded, have been dealt with effectively at the outset and minimal legal costs have been involved. Thirdly, the proceedings, I find, were brought honestly and sincerely by the applicant and she was entitled to test the issue of whether she had standing to pursue the proceedings. I found that she lacked standing, but I will make no order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 September 2002