RYALL & GRAVE
[2020] FCCA 2940
•30 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RYALL & GRAVE | [2020] FCCA 2940 |
| Catchwords: FAMILY LAW – Parenting – child supervised with mother by mother’s sister – mother’s sister seeks to intervene – intervener does not know what final orders will be sought – dismissal. |
| Legislation: Family Law Act 1975 (Cth), s.60CC. Federal Circuit Court Rules 2001 (Cth), rr.11.03, 13.10. |
| Cases cited: Church & T Overton & Anor [2008] FamCA 965 |
| Applicant: | MS RYALL |
| Respondent: | MR GRAVE |
| File Number: | BRC 7582 of 2017 |
| Judgment of: | Judge Coates |
| Hearing date: | 22 September 2020 |
| Date of Last Submission: | 22 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 30 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Alexander |
| Solicitors for the Applicant: | McInnes Wilson Lawyers |
| Solicitors for the Respondent: | Leishman Legal |
| Counsel for the Interveners: | Mr J. Linklater-Steele |
| Solicitors for the Interveners: | Barry Nilsson Lawyers |
| Solicitors for the Independent Children’s Lawyer: | ELR Law |
ORDERS
That the Initiating Application filed 14 September 2020 be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Ryall & Grave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7582 of 2017
| MS RYALL |
Applicant
And
| MR GRAVE |
Respondent
REASONS FOR JUDGMENT
This is a parenting matter involving the child X, born 2010, which was first filed on 5 July 2017, with final orders being made by consent on 30 January 2018.
Pursuant to those orders the child went into a shared care arrangement.
When courts make orders by consent the situation for the child is not always apparent.
Pursuant to s.60CC(5) of the Family Law Act 1975 (“the Act”) , the court may seek further information when orders are presented by consent, but there would have to be some apparent circumstance, condition or information available which would dissuade the court from making orders by consent, as the court does not want to interfere with proper parenting decisions.
When perusing the original material provided by the parties, what was not apparent were the issues of risk which have subsequently come to light, after the mother filed an Amended Initiating Application on 20 March 2018, wherein she sought that the child’s time with the father be reduced to every second weekend and for half of the school holidays.
Even when the matter was mentioned on 11 May 2018 the risk issues were not apparent, but the mother’s new application is based upon an alleged diagnosis for the child of Attention Deficit Hyperactivity Disorder (“ADHD”) which in her view now requires a change of orders.
A subsequent new final order was made on 8 August 2018 by consent, whereby the child X lived equally between the parties.
But on 14 April 2020 the mother filed an Application in a Case for a recovery order as the child had been held over by the father since 3 April 2020.
On 20 April 2020, because of the risks which were beginning to be outlined to the court, orders were made for the child to spend FaceTime only with the mother and for the appointment of an Independent Children’s Lawyer.
On 22 May 2020 the parties agreed that the child would remain with the father and spend time supervised with the mother, such supervision to be performed by Mrs Mella, the mother’s sister, and if she was not available, then at a supervision centre.
The orders made on 22 May 2020 began reflecting a response to risk, and directed the mother to continue with health assistance for addictions, required her to obtain carbohydrate deficient transferrin (“CDT”) testing and set a mention date in September 2020.
Two issues came before the court on 22 September 2020.
In chronological order the court was faced with an Initiating Application filed 14 September 2020 by Mrs Mella and her husband Mr Mella (“the Mella's”), seeking leave to become parties, as well as an Amended Application in a Case filed by the mother on 21 September 2020.
I will deal with the mother’s new Application in a Case first because at this stage it may be mentioned, without prejudice to either party.
Apart from seeking that the application filed by the Mella's be dismissed, the mother also sought that the orders made 22 May 2020 be discharged and that there be a return to the orders of 18 August 2018 until further order, with the child to spend time with the mother in the presence of the maternal grandmother, Ms A Ryall, upon an undertaking given by Ms A Ryall that she would supervise the child with the mother.
Although it appeared that the mother was wanting to press issues, it was also apparent that the father and the Independent Children’s Lawyer had not had time to respond and that the father will vehemently oppose a change in orders, based upon allegations of high risk. I will add that the father also sought the dismissal of the Mella's application.
The court was given some insight into the father’s case which the Independent Children’s Lawyer was not aware of.
He will argue that the mother not only has a long history of substance abuse, but that she has made several suicide attempts and that simply producing CDT testing certificates to show she had either not used or has reduced alcohol consumption over the past few months would not be enough for the court to determine that risks would be averted.
I will make the observation that the court would be assisted by expert evidence as to addictions from someone of the calibre of Dr B, pathologist in charge of biochemistry, Organisation C, or Dr D, Organisation E, a pharmacologist and forensic toxicologist.
In any case, I can only deal with the mother’s Application in a Case when all parties have had time to respond, and I would urge either the mother, or preferably the Independent Children’s Lawyer if funding can be obtained, to get a report from an expert as I have indicated in paragraph 19 above.
As to the application by Mr and Mrs Mella, there were submissions made by both parents as to why they should not be allowed to intervene, although the Independent Children’s Lawyer took no position.
If granted leave to intervene, they sought orders that the child live with them now, that they be given sole parental responsibility and that the child spend time with the parents on terms to be determined by the court.
The final order they seek is as follows:
“That the interveners have leave to further particularise the orders they seek on a final basis after leave has been granted to be included in the proceedings.”
The interveners seek to become parties pursuant to r.11.03 of the Federal Circuit Court Rules 2001 (“the Rules”).
That rule states:
“Person may apply to be included
(1) A person may apply to the Court to be included as a party to a proceeding.
(2) Unless the Court otherwise orders, the application must be supported by an affidavit stating:
(a) the person’s interest in the proceeding or any matter in dispute between the person and a party in the proceeding; and
(b) the orders (if any) that the person will seek if included as a party.
(3) The person must serve a copy of the application and affidavit on each party in the proceeding.
(4) An order for inclusion of the party may be on limited terms.”
I record the entirety of the rule because of submissions with regard to interventions and whether the appropriate application had been made, although their intervention was not opposed on technical grounds.
I conclude that there is nothing in the rule which would prevent Mr and Mrs Mella from becoming parties.
The rule requires that the interest asserted in the matter to be put before the court by way of affidavit and such is addressed by affidavits provided by Mrs Mella and Mr Mella.
Mrs Mella gives very particularised evidence of the association she has had with her sister, the mother of the child X, which has included assertions that she is aware of the mother’s “years of alcohol abuse and her conflict with Mr Grave” (Mr Grave being the father here), that the mother had lived in her house for 12-months before the relationship with the father, that the mother has had an alcohol issue for at least 15-years and that she has observed her abuse of alcohol, that in March 2020 when she received a message from a neighbour that the mother was threatening to kill herself and she was concerned about the safety of the child, that she and her husband took the child that night after an ambulance took the mother to hospital, that Mr Mella found it necessary to fly from their residence in Melbourne to Brisbane to assist the mother and the child, that Mr and Mrs Mella have temporarily relocated from Melbourne to Brisbane to assist the mother, and that Mrs Mella is concerned about the child in the father’s care and that she has made notifications to the Department of Child Safety, Youth and Women.
As to concerns about the child being with the father, Mrs Mella states that she has observed the father denigrate the mother over a number of years and that he has been cold and unaffectionate towards the child. Her belief is that the child is in danger of suffering long-term psychological harm in his care.
Under the current orders Mr and Mrs Mella supervise the child’s time with the mother and obviously that has enhanced the family connection between the child and his extended family.
It is difficult to fully comprehend Mrs Mella’s concerns about the child and the father’s care.
She made a statement to the effect that:
a)The child had his head shaved by the father;
b)On one occasion the child had no shoes on when the father dropped him at a park in which there were dog droppings, and the child stood in the faeces;
c)The child was dressed in clothing too small for him;
d)She has observed the child in the father’s care describing him as “very hyper” and sometimes agitated;
e)She has observed the child dry-eye and with dry and cracked skin;
f)She has heard the child state that he has not eaten;
g)She has observed his teeth to be brown and dirty;
h)That the child seems confused as to why he is allowed to spend only three hours of the time with his mother, and
i)That she has made notifications to the Department of Child Safety, Youth and Women.
These are observations and claims, but on their face do not seem to amount to what would be classified as an unacceptable risk.
I was referred to the matter of Church & T Overton & Anor [2008] FamCA 965 in the father’s case which concluded that the parents in that matter had the right to exclude the maternal grandfather from contact with their children.
In that decision Benjamin J carefully assessed the parenting provisions and amendments made to the Act in 2006 which establish that the best interest decision for children is in relation to orders involving their parents, with no general right given to others to interfere in the parenting role.
In response counsel for Mr and Mrs Mella stated that the Church & T Overton case dealt with functioning parents and this matter was far from that.
I must say that at this point of the proceeding, although there are many allegations, the evidence does not indicate that the father is not functioning in the sense that he could not look after his child, even if such care is below another’s personal standards. There is certainly a question over the mother’s functioning as a parent and in relation to co-operation between the parents, however, that the Mella's do not like the father and make claims of the child in his care does not prove he is not a functioning parent within terms of the Act.
In stating that I am cognisant of the mother’s application for the child to now live with her, even on an interim basis, because she has returned testing certificates which allegedly show she has alcohol consumption under control, as I stated above.
There is an updated family report to be received in this matter, and that may throw light on the father’s “functioning” as it is to be determined pursuant to the considerations of the Act.
There can be no doubt that the application by Mr and Mrs Mella is one which can be made, but there are numerous difficulties for them in gaining orders for a change of residence for the child from the father, or the mother, and into their care and control.
However, there is another crucial problem that this particular application faces.
While the Rules for an intervener do not necessarily require a statement of orders to be made, I do not read them in such a way that permits the situation which was put to the court, that Mr and Mrs Mella do not know what ultimately they do want.
In my view the rule that an intervener does not necessarily have to state what they want [r.11.03(2)(b) of the Rules] applies to very different situations than those stated here – where the best interest of the child are the paramount consideration, where Mr and Mrs Mella have formed views as to the suitability of both parents to have care and control of their child and where the court was told they want to have the child in their care now, but take a wait-and-see attitude as to what they seek by way of final orders for the child.
The Rules require an Initiating Application to state the orders sought – and that is the final orders, not merely interim orders (there was some discussion as to what type of application ought to have been filed however no relevant issue turns on this).
The rule simply reproduces a fundamental proposition of all court proceedings – a respondent is afforded natural justice, or procedural fairness as it is called now, in knowing what the case is which has to be met.
Without such a statement, no case in opposition can be mounted and if such a matter is allowed to proceed, the grounds would constantly shift, creating an unfairness which could not be corrected by the court.
I do not doubt that the intentions of Mr and Mr Mella are in response to what they believe would be in the best interests of the child, but, they do not know what they want on a final basis and as I interpreted the submissions made, such may mean the creation of circumstances by way of orders to transition the child back to the mother’s care.
As well, the observations of Mr and Mrs Mella in relation to the condition of the child they say they have observed may well have plausible explanation, and, the Department of Child Safety, Youth and Women has not intervened with child protection orders for X.
I cannot discount that Mr and Mrs Mella have now played a vital role in having the child receive the benefit of the meaningful relationship with his mother due to them undertaking the burden to supervise the time, but having an unstated outcome in their application now simply causes confusion and no doubt adding to the complications which have to be worked through in a forensic and judicial manner.
Mr and Mrs Mella have sought to intervene but as they do not know what final orders they want, they have put themselves in a position of having “no reasonable prospect of successfully prosecuting the … claim” (r.13.10 of the Rules), to use the wording of the Rules, but in reality, they have no prospect of success at all.
It is a fundamental and invariable rule that when an action is filed against a person, that person needs to know what case is to be met, and the parents here could not know what case they are to meet. The difficulty of running such a case extends to Mr and Mrs Mella as well, who do not know what case they will run.
I had considered allowing the Mella's time to file an amended application, however, on consideration, if they do not know what they want at present, and they did not seek an adjournment to re-file material, an extension of time will not place them in any better position.
It is on that basis that the court is satisfied that they have no reasonable prospect of success, and I will dismiss their application.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 30 October 2020
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