Raddack & Gadoury (No 2)
[2023] FedCFamC2F 110
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raddack & Gadoury (No 2) [2023] FedCFamC2F 110
File number(s): MLC 2245 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 January 2023 Catchwords: FAMILY LAW – application in a proceeding for paternal grandparents to intervene – allegations of risk made against paternal grandfather – section 92A of the Family Law Act 1975 (Cth) relevant – rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 relevant – orders made for paternal grandparents to be joined as parties to the proceedings. Legislation: Family Law Act 1975 (Cth), s 92A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 3.01
Cases cited: Raddack & Gadoury [2021] FedCFamC2F 461 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 19 January 2023 Place: Melbourne The Applicant: Litigant in person Solicitor for the First Respondent: Mr B. Rothschild, Brendan Rothschild Legal Group Solicitor for the Second and Third Respondents: Mr T. Cooper, Randles, Cooper & Co. Pty. Ltd. Counsel for the Independent Children's Lawyer: Mr S. Foo Solicitor for the Independent Children's Lawyer: Leslie Family Law ORDERS
MLC 2245 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RADDACK
Applicant
AND: MS GADOURY
First Respondent
MS RADDACK
Second Respondent
MR C RADDACK
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 JANUARY 2023
THE COURT ORDERS THAT:
1.The paternal grandparents, MS GADOURY and MR C RADDACK, be added to the proceedings as Second and Third Respondents respectively.
AND THE COURT ORDERS BY CONSENT THAT:
2.That unless varied by these Orders, the interim Orders of 7 February 2022 (“interim Orders”) remain in full force and effect.
Adjournment of Final Hearing
3.The Final Hearing listed 30 January 2023 be vacated and adjourned to Monday 13 November 2023 (requested to be not before 1 October 2023) with an estimated hearing time of three days.
4.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
5.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
6.No later than 56 days prior to the trial date, the Applicant file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit; and
(c)other witness affidavits upon which they intend to rely.
7.No later than 42 days prior to the trial date, the First Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit; and
(c)other witness affidavits upon which they intend to rely.
8.No later than 28 days prior to the trial date, the Second and Third Respondents file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit; and
(c)other witness affidavits upon which they intend to rely.
9.No later than 14 days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondents’ affidavits; and
(b)the Independent Children’s Lawyer file and serve any affidavits relied upon.
10.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought.
11.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
12.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
13.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
14.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge’s working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses, including the witness’ own affidavit.
15.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
Paediatric Assessments
16.That pursuant to paragraph 5 of the interim Orders, that the parents shall do all things necessary to obtain a referral for the children X born in 2018 (“X”) and Y born in 2018 (“Y”) to attend upon a paediatrician recommended by their treating general practitioner in place of Dr E or his nominee, as soon as practicable and that both parents comply with any requests or directions necessary for the pediatric assessments to occur and both parents shall ensure that the other parent will be informed of all appointments and assessment outcomes to allow each parent to be involved in the assessments.
17.Upon receipt of written confirmation that a referral has been obtained in accordance with the preceding Order, the Independent Children’s Lawyer shall comply with Order 7(a) of the Interim Orders dated 7 February 2022.
18.The parties have liberty to apply to the Court in relation to the paediatric assessments of X and Y.
Interim spend-time arrangements
19.Orders 2(e) and 2(f) of the Interim Orders dated 7 February 2022 be discharged.
20.X and Y spend time with the Father each alternate weekend from 4pm Friday until 3pm Sunday commencing 20 January 2023.
21.Changeover for X and Y’s time with the Father shall occur at McDonalds Family Restaurant Suburb F at the commencement and conclusion of time.
22.In the event the Father is unable to conduct a changeover of the children’s time with him, the paternal grandparents shall be at liberty to conduct the changeover on his behalf.
23.The Mother shall forthwith do all things and sign all necessary documents to permit the Father and the paternal grandparents to collect X and Y from childcare, in accordance with Orders 8 herein.
24.Both parties be permitted to liaise with and obtain information from X and Y’s childcare, and these Orders shall act as authority for same.
25.The parties or either of them are at liberty to provide a copy of these Orders to X and Y’s childcare.
Dispute Resolution
26.That the parties and their legal practitioners participate in FDRS mediation prior to the Defended Hearing facilitated by Victoria Legal Aid and the Independent Childrens Lawyer initiate the process.
AND THE COURT NOTES THAT:
A.The parties agree the matter is not able to proceed to final hearing on 30 January 2023 and that the final hearing should be vacated and adjourned.
B.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the FactSheet attached hereto and these particulars are included in these Orders.
C.These interim Orders are consented to by the Independent Children’s Lawyer save that the ICL does not oppose the joinder of the paternal grandparents.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Raddack & Gadoury (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESY
These are the settled ex tempore reasons in this matter.
BACKGROUND
The question I must determine is whether or not the Paternal Grandparents are joined as parties to these proceedings. The case concerns the Applicant Father, Mr Raddack (‘the Father’), and the Respondent Mother, Ms Gadoury (‘the Mother’), each of whom are aged 34 years at the time of these reasons. They have two children, twins X and Y, who will turn 5 shortly after these reasons. The parties commenced cohabitation in 2016, and their relationship was completely over by April 2018.
The application was opposed by the solicitor for the Wife on the basis that the intervention of additional parties was unnecessary and would add to the length of the Final Hearing.
These proceedings were commenced in March 2021. This is the second judgment that I have given in this matter, the first anonymised and known as Raddack & Gadoury [2021] FedCFamC2F 461, delivered on 5 November 2021, and I refer to and adopt those reasons. Subsequent to that judgment, the matter was before the Court in February 2022 where further orders were made.
The matter was listed for Final Hearing commencing 30 January 2023, and the matter comes before me as a result of the filing of an Application in a Case by the Father’s parents, Mr and Mrs Raddack Senior.
It is not disputed that there have been allegations made that the children are at risk of abuse from the Paternal Grandfather. I refer to section 92A(2)(e) of the Family Law Act 1975 (Cth) (‘the Act’):
Section 92A Intervention in child abuse cases
(2) Each of the following persons is entitled to intervene in the proceedings:
…
(e)a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
…
Hence, according to the Act, the Paternal Grandfather is entitled to intervene, and that is given more weight in the circumstances where it is common ground that they have been involved in the spending of time with the children when the Father does for the last one and a-half years.
I refer to the following paragraphs of the Family Report prepared by Ms G dated 5 November 2021:
57.The children were happy and excited to see the paternal grandparents, they accepted cuddles from them and seemed content and familiar with them. The addition of the paternal grandparents added more focus to the observations, with each child having the attentions of either the father or one of the grandparents. They were observed to engage in several games with the children and [Y] spent much of her time on [Mr Raddack]’s lap been read to. The grandparents queried what was the aetiology of the children’s developmental delay. They spoke of unsocialised behaviour such as the children throwing food on the floor and seemed patient in how they responded to these behaviours. They discussed that [Y] despite her lack of focus and at times aggressive outbursts, also wanted to help at home, for example with cooking and dishes. It appeared that [Mr Raddack] benefited from the assistance of his parents and expressed it would be difficult to care for the children on his own for long periods of time.
…
64.The children presented with developmental delays. They did not appear congruent to their developmental age. They had observable delays in language, cognitions, social, fine and gross motor skill development. This has also been noted since the children commenced kindergarten. The children present as active and could be difficult to manage. [Mr Raddack] acknowledges he would have trouble in managing the children by himself and it is the writers view that the paternal grandparents provide good practical and emotional support to [Mr Raddack], they are additional adults committed to care for the children and provide oversight and are a protective factor.
…
69.Notwithstanding some of the confusions and lack of clarity around the children’s developmental needs the parents do agree that an arrangement that is continually the same, with clear and reasonable times for handover would be helpful. They both in principle agree that an arrangement whereby the children spend time with [Mr Raddack] each alternate weekend may enable more routine for the children. While [Ms Gadoury] is not assured of the paternal grandparent’s involvement wanting [Mr Raddack] to place himself front and centre as a committed father, it is the writer’s assessment their presence is helpful and a protective factor. It would assist the children if the paternal grandparents could conduct the Friday afternoon handover at 4:00pm instead of waiting for [Mr Raddack] to finish work.
…
Recommendations
It is respectfully recommended and in the absence of any information to the contrary, the Court considers the following.
…
72.The children spend time with [Mr Raddack] at the paternal grandparents home each alternate weekend form 4pm Friday until 4pm Sunday. The paternal grandparents conduct handover on a Friday afternoon if [Mr Raddack] is unavailable to do so.
…
On the face of it, it is at least arguable to say that the Paternal Grandparents have been very significantly involved in these children’s welfare by being very significantly involved in the time that the Father has been able to achieve. It is significant that the report writer observed that the Paternal Grandparents’ involvement is crucial to the children’s welfare.
I refer to Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021:
Rule 3.01 Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
(Example omitted)
In the circumstances where the report writer recommends that the Paternal Grandparents not only be involved, but that the Father’s time take place at their home each alternate weekend, in my view, they are a ‘necessary party’ pursuant to Rule 3.01. Further, I refer to section 92A(2)(c) of the Act:
Section 92A Intervention in child abuse cases
(2) Each of the following persons is entitled to intervene in the proceedings:
…
(c)any other person responsible for the care, welfare and development of the child;
…
I rule that the Paternal Grandparents are entitled to intervene pursuant to 92A(2)(c) of the Act, and, in any event, whether I am right about either of those matters, they are significantly involved in the welfare of these children. I accept the submission of the counsel for the Independent Children’s Lawyer that the Court would be assisted by their participation as parties. And, in any event, they are likely to be witnesses, and significant witnesses, in the Father’s case.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 February 2023
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