Roman and Middleton and Anor
[2015] FCCA 2565
•22 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMAN & MIDDLETON & ANOR | [2015] FCCA 2565 |
| Catchwords: FAMILY LAW – Application by paternal Grandmother to intervene in proceedings – Grandmother (and one of the children) are indigenous Australians – Grandmother supports the Father of one of the children – mutual allegations of abuse and family violence. |
| Legislation: Family Law Act 1975, ss.60CA, 65C(ba) & (c), 65D(1) |
| Aldridge v Keaton (2009) FLC ¶93-421; (2010) 42 Fam LR 369 Carlson v Bowden (2009) 40 Fam LR 327 Church v Overton (2009) 40 Fam LR 357 KAM v MJR; JIG (Intevener) (1999) FLC ¶92-847; (1998) 24 Fam LR 656 Valentine v Lacerra (2014) 49 Fam LR 255 |
| Applicant: | MR ROMAN |
| First Respondent: | MS MIDDLETON |
| Second Respondent: | MR TAIT |
| File Number: | CAC 711 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 6 August 2015 |
| Date of Last Submission: | 9 September 2015 |
| Delivered at: | Canberra |
| Delivered on: | 22 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Friedlieb Byrne, Wagga Wagga |
| Solicitors for the First Respondent: | Tarella Law, Albury |
| Solicitors for Second Respondent: | No appearance |
| Solicitors for the Independent Children's Lawyer: | Goldbrook Family Law, Canberra |
ORDERS
The Amended Application in a Case, filed by the paternal Grandmother on 17th July 2015, be dismissed;
It is requested that the paternal Grandmother be part of the assessment by the Family Consultant;
The Independent Children’s Lawyer be discharged;
Having regard to the locality of the parties and the children, the Legal Aid Commission of New South Wales is requested to appoint an Independent Children’s Lawyer for the children the subject of this proceeding from either the (omitted) or (omitted) areas.
IT IS NOTED that publication of this judgment under the pseudonym Roman & Middleton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 711 of 2015
| MR ROMAN |
Applicant
And
| MS MIDDLETON |
First Respondent
| MR TAIT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter, substantively, concerns parenting orders in relation to 4 year old X, and 1 year old Y. These children have different Fathers – the Applicant and the Second Respondent. To date, the Second Respondent has not engaged in the proceedings at all.
More immediately, formally, there is an Application, filed 12th June, by which the paternal Grandmother, Ms V (the Applicant’s Mother) seeks to intervene in the proceeding. She is an indigenous Australian, as is her son and her grandson, Y. Ms V is the paternal Grandmother only of Y. She claims however that X would regularly stay over at her place, and that, because of the Mother’s alleged mental health issues, she has regularly acted protectively towards X.
Ms V also deposes to her support for, and agreement with, the orders sought by her son, the Applicant Father of Y, which include a change of residence of the children to live primarily with the Applicant Father; this Application includes the Father’s non-biological child, X.
All parties have filed written submissions pursuant to orders made on 6th August. Very belatedly, the Independent Children’s Lawyer (“ICL”) filed submissions also, but only after the Court made inquiry whether submissions would be provided. The parties’ submissions are detailed and helpful; unfortunately, in addition to being late, the ICL’s submissions are of no assistance at all. They are dealt with briefly at the end of these reasons.
For the reasons that follow, the Grandmother’s Application must be refused. Having made such a ruling, also for the reasons that follow, to the degree that it is necessary, I grant leave to the paternal Grandmother to file a further Application in the event that the evidence is such as to warrant her to be joined as a party, particularly having regard to the potential relevance and significance of indigenous culture to the outcome of the substantive proceedings.
Also for the reasons that follow, but primarily because all the parties and the children involved are in the (omitted) and (omitted) regions, and the ICL is based in Canberra, the current ICL is discharged; it is requested that an ICL from either of the two country NSW regions noted ((omitted) and (omitted)) be appointed.
Submissions
The Grandmother’s submissions were as follows (I have omitted the outline of facts in them, and I have re-numbered the submissions; “Ms V” in the submissions are the initials of the Grandmother. It has also been necessary very slightly to amend and or to correct some stylistic or other matters to assist the readability of the submissions):
1) In KAM and MJR and Another [1998] FamCA 1896 (13 November 1998) Burr J, in considering the requirements of Section 65C(c), said at [5.1.3]
“In order to proceed beyond the mere making of an application, the applicant for a parenting order must demonstrate that they are “a person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.”
[at 5.1.4] “… there may well be circumstances in this court where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test...”
[at 5.1.5] “the specific wording of Section 65C(c) appears to require the demonstration of a concern with only one of the issues of care, welfare or development.” (Emphasis added)
2) The decision in KAM was approved in BEMERT and SWALLOW [2009] Fam CA 5 at 213 and was cited with approval by Bell J in Mathews and Santos and Director-General [2002] FamCA 401 as well as Altobelli FM in Venkatesan and Pawar [2007] FMCA FAM1109.
3) The decision of Aldridge and Keaton 2009 FamCA FC229 a Full Court decision was referred to and was cited with approval in the decision of Thomas and Another and Franklin and Another [2013] FamCA618 at paragraph 28 & 83.
Submissions
4) Ms V has had a significant involvement with X in a meaningful sense in contributing to his care as well as adopting a role as a protector.
5) There are elements of a carers role undertaken by Ms V, particularly during overnight contact periods. Ms V was responsible together with Mr Roman for taking X to preschool.
6) In addition to the above, there are 2 steps in the ultimate determination. (see Aldridge & Keaton 2009 Fam CAFC 229 at paragraph 83)
7) Step 1, is Ms V a person concerned with the care, welfare or development of X
8) Step 2, And if so, what order should be made in the best interests of X.
9) Ms V has standing to make an application for a parenting order regarding Y (S65C(ba)).
10) It is submitted that Ms V’s application as a “person concerned” cannot be determined without taking into account the ultimate consideration of the determination of “the best interests” in relation to Y after consideration of the principles under S60CA, S60B(1), S60B (2), S60CC(2) and S60CC(3).
11) Accordingly it is submitted that Ms V is clearly a person concerned with X’s care, or concerned with his welfare or concerned with his development or in deed a combination of those three factors.
The Applicant Father’s submissions, which unsurprisingly were in support of the paternal Grandmother, were as follows (throughout the submissions, the Grandmother’s surname is misspelt, which I have not corrected):
1) The Applicant father does not object to Ms V, the Proposed Intervenor’s Application in a Case filed on 12 June 2015 for the following reasons:
a) Ms V is the paternal grandmother for the child Y.
b) Ms V has played a significant role in the care and welfare of the child Y and is therefore a person “concerned with the care, welfare and development” of Y pursuant to Section 65C(c).
c) The father agrees with the evidence sworn in Ms V’s affidavit sworn 11 August 2015, specifically paragraphs 3-9.
d) The father agrees with the evidence sworn in Ms V’s affidavit sworn 1 June 2015, specifically paragraphs 14-16, 18, 19, 21, 25-26, 33-35.
e) The Applicant father has an amicable and close relationship with Ms V and does not object to her application to become a party to the current proceedings.
f) The Applicant father does not oppose the specific orders Ms V is seeking in relation to spending time with the children.
2) The Applicant father is not seeking specific orders for Ms V to spend time with the children in his application and therefore Ms V’s application can be differentiated from the Applicant father’s application.
3) The Applicant father instructs the relationship between the Respondent mother and Ms V has deteriorated since the Applicant father and mother separated and these proceedings commenced. The Applicant father is concerned that without court orders, the mother would not allow Ms V to spend time with the children. The Applicant father supports a continuing relationship between Ms V and the children.
4) In summary, the Applicant father has no objections to Ms V becoming a party to the current proceedings and supports her Application in a Case.
The Respondent Mother’s submissions, which also unsurprisingly opposed the Grandmother’s Application, set out the following matters:
1) Ms V seeks to intervene in these proceedings, and will if granted leave, seek Orders to spend time with the children, X born (omitted) 2011 and Y born (omitted) 2014.
2) Ms V is the paternal grandmother of the child Y born (omitted) 2014. As such, she has standing to make an application under section 65C(ba) of the Family Law Act 1975 with respect to Y.
3) Ms V relies on section 65C(c) for standing to make an application with respect to X born (omitted) 2011.
4) At paragraph 5 of KAM v MJR and Anor 24 FamLR 656 Judge [sic] Burr sets out the ‘threshold test’ for a party to establish standing under section 65C(c); “… in order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child.” In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case. That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the 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 interest of the child, as would be the nature and form of any such order.”
5) In this case, Ms V has spent time with the child X, however the mother deposes in her affidavit sworn 11 July 2015 at paragraph 36, 37, 38 and 39 that she has serious concerns about the ability of Ms V to behave safely and appropriately towards the children.
6) The Court will be cautious in light of the conflicting evidence before the Court of presuming that a meaningful relationship exists between either of the children and Ms V.
7) Church & Overton and Anor [2008] FamCA 965 is authority for parents being entitled to parent their child, and paragraphs 58 and 60 set out that the onus of Ms V is to demonstrate that the parent is not acting in the child’s best interest.
8) Venkatesan & Pawar [2007] FMCAfam 1109 is a useful discussion of the assessment of the facts in a particular family in an application pursuant to section 65C(c) and makes it very clear at paragraph 11 that the Court must act in the best interests of the child on the basis of the relationship that the child has with the person seeking to bring the application.
9) Matthews & Santos & Director-General [2002] FamCA 401 at paragraph 26 reminds us that whilst the Court may be satisfied there is a sufficiently proximate relationship, the Court may then go on to consider that it is not in the best interests of the child to make Orders in favour of the person seeking to bring the application.
10) Bemert & Swallow [2009] FamCa 5 reviewed the likely course of proceedings had the grandfather in that case, been permitted to continue. This case bears similar consideration. Ms V deposes to making numerous reports to Family & Community Services. She alleges the mother has ongoing mental health issues and is violent towards the children. The mother relies on her own material in relation to her mental health and treatment of the children.
11) In this case the Court may be satisfied that Ms V meets the objective standard of having had a proximate relationship with the children.
12) However, the Court cannot be satisfied that firstly, the relationship was positive or meaningful. Second, the Court cannot be satisfied that Ms V’s role in these proceedings moving forward will be in the children’s best interests. Ms V has deposed to making multiple reports to Family & Community Services, despite not being in contact with the children. The mother feels that Ms V was intrusive and interfering whilst the parties were still in a relationship. The child Y is very young and has not had contact for a considerable time, his ability to still have a relationship with Ms V must be questioned.
13) There is significant dispute and acrimony between all parties in this matter and Ms V’s role in these proceedings will only exacerbate that acrimony.
14) The mother is the only person parenting the child X, she needs to be supported and assisted and permitting Ms V to join the proceedings will add to her stress and the day to day challenges she faces parenting these two small children.
15) The father, if successful in obtaining orders for time with the child Y, could then facilitate time for the grandmother without there needing to be orders. Indeed the father seeks residence of both children and if successful would be perfectly placed to satisfy Ms V’s wish to have an ongoing relationship with the children.
16) The Court should be very cautious about assuming the children have a positive relationship with Ms V on the material presently before the Court, and should act to protect the children from as much dispute and acrimony as possible. Accordingly, the mother submits that Ms V should not be permitted to join these proceedings.
Because the ICL’s submissions were so brief, and the email under cover of which the submissions were sent significantly exceeded the length of the submissions, and for other matters noted later, as earlier observed I deal with those submissions at the end of these reasons.
Consideration & Disposition
As will have been noted from the submissions, there is no formal objection or challenge to the Grandmother’s standing to bring the Application to intervene.
For example, as will be seen from her submissions (para.2), the Mother conceded that in relation to Y, the paternal Grandmother readily satisfied the requirements of s.65C(ba) Family Law Act1975 (“the Act”).
The Mother also conceded, specifically in relation to the paternal Grandmother being able to bring the Application in relation to X, who is not her biological Grandson, (para.11) that “the Court may be satisfied that Ms V meets the objective standard of having had a proximate relationship with the children.”
It will be clear from the submissions set out earlier in these reasons that the Mother highlights, perhaps not unreasonably, that there are many contested facts in the current matter generally. She also submitted that because the paternal Grandmother has made a significant number of reports to authorities, her prudential judgment about the care of the children, and her [adverse] view of the Mother, are significant factors for the Court to consider. Likewise, the negative impact on the Mother of those reports to authorities is important to consider.
The Applicant Father simply submits that, pursuant to the terms of s.65C(c) of the Act, his Mother has played a significant role in the care and welfare of the children.[1]
[1] Generally, see the discussion in KAM v MJR; JIG (Intevener) (1999) FLC ¶92-847.
The following case law is apposite – some of which has been cited in the submissions that are before the Court.
First, in Church v Overton, Benjamin J referred, at [30], to the special place that parents have and or play in the lives of their children, while at [43], his Honour noted the importance of the Court having proper regard to the family dynamics in play in the matter before the Court.[2]
[2] Church v Overton (2009) 40 Fam LR 357.
A little later in the judgment, at [47], his Honour said:
Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.
Then at [63] his Honour cautioned against Courts peering over the shoulder of the parents of the children. And finally, at [113], Benjamin J further cautioned about the need to pay particular regard to the potential impact of orders on the parents, which could extend to considering their relative grief or happiness at the making of orders in favour of a grandparent.[3]
[3] See also Carlson v Bowden (2009) 40 Fam LR 327. In that case, Murphy J made orders in favour of the maternal Grandmother.
I observe immediately that a number of the matters noted by Benjamin J in Church v Overton were reviewed somewhat critically by the Full Court in Valentine v Lacerra; curiously, none of the parties (or the intervener) mentioned this Full Court decision.[4] It is sufficient to note the following from that judgment.
[4] Valentine v Lacerra (2014) 49 Fam LR 255.
At [42] – [43], the Full Court said:
[42] … senior counsel for the father relies heavily on the single judge decision of Benjamin J in Church & S Overton (2008) 40 Fam LR 357, but that reliance is misguided. In that case, Benjamin J was faced with an argument by the applicant grandfather that a grandparent has a “special position” under the legislation which entitles him or her to spend time and communicate with grandchildren. That is clearly not correct, but it seems that in dispelling that notion his Honour went too far the other way and in effect accepted the submission of the parents that it was their role to determine with whom their children should have a relationship, and that should shape whatever order is made. His Honour’s comments that tend to suggest that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority. For example, in Aldridge & Keaton (2009) FLC 93-421, the Full Court, in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
· the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
[43] The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
It should be immediately noted that the cases to which I have referred all confirm that there is a wide discretion as to whether an Applicant under s.65C of the Act should be joined as a party to the proceeding. In the current Application, the Court’s consideration is not on the making of a parenting order per se but simply on whether the paternal Grandmother should be permitted to intervene and become a party to the proceeding, which would then permit or enable the Court, in the light of all the evidence, to make a parenting order that is in the best interests of the children.
As noted in the Grandmother’s submissions set out earlier in these reasons, in KAM Burr J described the relevant process of the Court as involving two stages or steps: the first or threshold stage is establishing relevant interest; the second stage requires a determination as to whether or not a parenting order is appropriate and in the best interests of the child/children.
Having regard to what his Honour said in KAM, and what the Full Court said in Aldridge v Keaton, in my view, respectfully it seems that the most appropriate course is to adopt more of a three step process, whereby the Court has to make determinations regarding the following:
(i)are the terms or requirements of s.65C met?
(ii)if the answer to the first step is in the affirmative, should the proposed intervener be granted leave to become a party to the proceeding (with some preliminary regard to the relevant considerations in Part VII of the Act, including of course s.60CA)?
(iii)if the application to intervene is successful, then the requisite considerations from Part VII for the making of a parenting order, which would then include the intervener as a party, is required in the child’s best interests, and which is made in the light of all the evidence before the Court.
Adopting this three step process, as already indicated, it is not disputed that the paternal Grandmother satisfies the requirements in relation to s.65C of the Act, albeit in relation to different criteria, concerning each of the children.
The second step relates to the Application by the paternal Grandmother to be joined as a party to the proceeding, as opposed to the making of any parenting order per se at this stage in relation to either of the children.
In relation to this second step, in my view, the submissions made on behalf of the Mother should be accepted. They more than adequately set out sound reasons why the Application should be dismissed. In particular, there seems little dispute that:
(a)the Mother has some contest not only with the Applicant Father but also with the paternal Grandmother, and
(b)if the Father is successful in his Application regarding spending time with Y, there will be more than ample opportunity for his Mother to spend time with Y as well. This would logically be the case if the Father’s change of residence Application is successful.
All of this is not to say that the Application for joinder is without merit. And precisely because of the submissions of the paternal Grandmother, to the degree it is necessary, leave should be granted to make any similar application after the family report issues. Further, in my view, the paternal Grandmother should be part of the assessment process in relation to the preparation of the family report.
The final matter to address is the ICL’s submissions. I will seek to be almost as brief as the submissions themselves.
First, no submissions were provided by the ICL, pursuant to the Orders of 6th August, until after the Court inquired (on 8th September 2015) whether any submissions were intended to be filed.
Second, the submissions stated as follows:
1) The Proposed Intervener is a person with standing to intervene as per the Family Law Act 1975.
2) The Independent Children’s Lawyer neither consents nor opposes the application.
The submissions were provided under cover of an email which stated, among other things:
Please find enclosed the Independent Children’s Lawyer [sic] in relation to the Orders dated 6th August 2015. We apologies [sic] for the delay.
… In response to the number of subpoena issued by the ICL, after review of the documents received from the parties, it was determined the subpoena needed to be issued so as to ensure matters are properly drawn to the courts [sic] attention and are current.
I need only note that:
(a)The basis of the submission for the paternal Grandmother’s standing is not outlined. No section of the Act, or anything else, is referred to. The submission is simply an unsupported assertion.
(b)It would appear that the significant number of subpoenæ issued was intended to enable the ICL properly to inform the Court about relevant matters. No matters have been drawn to the Court’s attention by the ICL. And the ICL has no view in relation to any of the submissions filed by the parties and the Grandmother.
(c)I have significant difficulty in accepting that an ICL can have no view – one way of the other - whether a party should be joined in parenting proceedings. It would have assisted even if there was a consideration of and comment on the submissions of the parties.
In any event, whatever of the lateness and the scantiness of the ICL’s submissions, in my view, given the geographical locality of the residence of the children in country New South Wales, the children will be better served by having an ICL who is in much closer physical proximity to them than someone whose practice is located in Canberra. Accordingly, the current ICL’s appointment is discharged, and the Legal Aid Office of NSW is requested to appoint an ICL who is based in either (omitted) or (omitted).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 22 September 2015
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