RYALL & GRAVE - [2020] FCCA 2940

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2940
Decision Date: 30 October 2020

CaseChat Overview and Summary

In the matter of *Ryall & Grave*, heard by Judge Coates, the dispute concerned parenting arrangements for a child, with supervision by the mother to be facilitated by the mother's sister. The mother's sister sought to intervene in the proceedings.

The central legal issue before the court was whether the intervener, who had not yet indicated the final orders she intended to seek, had standing or a sufficient basis to be permitted to intervene in the parenting proceedings.

Judge Coates dismissed the Initiating Application to intervene. The court applied rule 13.10 of the Federal Circuit Court Rules 2001, which governs intervention. The reasoning appears to be that an intervener must demonstrate a clear intention regarding the orders they seek to obtain, and in this instance, that clarity was lacking, thus preventing the intervener from establishing a sufficient interest in the proceedings at that stage.

The court ordered that the Initiating Application filed on 14 September 2020 be dismissed.

Orders

Orders of the court

That the Initiating Application filed 14 September 2020 be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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