Shamon & Shamon (No 12)
[2024] FedCFamC1F 69
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 12) [2024] FedCFamC1F 69
File number: SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 16 February 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application for joinder – Declaration sought that the party proposed to be joined holds property on trust for the benefit of the first respondent – Where the final relief sought does not bind the party proposed to be joined nor directly affect them by the making of the final relief – Necessity not established – Application for joinder dismissed.
FAMILY LAW –PARENTING – Application to vary interim parenting orders – Best interests of the children – Whether there has been a significant change of circumstances so as to warrant revisiting the existing parenting orders – Where the matter will be heard for final hearing in less than two months – Extension of hours of supervised time – Application otherwise dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII ss 60CC, 60CG, 78, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01 and r 3.03
Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223
Marvel & Marvel (2010) 43 Fam LR 348
Riemann & Riemann and Ors (No. 3) [2017] FamCA 911
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Victoria v Sutton (1998) 195 CLR 291
Wayne v Dillon (2008) 40 Fam LR 543
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 14 February 2024 Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Elachkar Solicitor for the Respondent: Lawbridge Lawyers & Consultants The Second Respondent: Did not participate The Third Respondent: Did not participate The Fourth Respondent: Did not participate The Fifth Respondent: Did not participate Independent Children's Lawyer: Ms Bleier, Steiner Legal ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAMON
Applicant
AND: MS SHAMON
First Respondent
MR B SHAMON
Second Respondent
MS C SHAMON (and others named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Order 4 of the orders of 19 May 2022 is varied to delete reference to “two hours” and replace it with “three hours”.
2.The husband’s Application in a Proceeding filed 21 November 2023 is otherwise dismissed.
3.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
Before the Court are two discrete interim applications:
(1)Application to vary interim parenting orders;
(2)Application by the husband to join with wife’s brother as a respondent to the final property application.
The husband is the applicant in respect of both applications.
The husband and wife (and various third parties) are preparing for the final hearing in this matter which is listed for seven (7) days commencing on 4 April 2024 in relation to both financial and parenting orders.
APPLICATION FOR JOINDER
The law
Section 79(10)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides that any other person (or entity) whose interests would be affected by the making of an order is entitled to be joined to the proceedings.
This is not an application by a person who is seeking to be joined, but rather an application by the husband seeking to join a third party, in this case, the wife’s brother.
In Victoria v Sutton (1998) 195 CLR 291 the High Court said:
77.The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order…
(Footnote omitted)
The husband has engaged a process sever on numerous occasions to serve the proposed party. I am satisfied this application should be heard notwithstanding the failure to demonstrate service.
Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
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.
Rule 3.03(4) provides that a party who seeks to join someone to the proceedings after the first Court date must seek leave to do so.
In Wayne v Dillon (2008) 40 Fam LR 543 (“Wayne v Dillion”), Warnick J wrote about the expression “necessary” as it appeared in the precursor to the current Rules and said that “necessary” meant:
18. … something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
19. However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”. …
The Full Court in B Pty Ltd and Ors & K and Anor (2008) FLC 93-380 held as follows:
52. We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
In Riemann & Riemann and Ors (No. 3) [2017] FamCA 911 at [37], McClelland J (as his Honour then was) cited with approval the judgment of Le Miere J in Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223 where Le Miere J observed as follows:
27.The applicant on a joinder application must show that there is an arguable case sufficient to resist the entry of summary judgment by the parties sought to be joined: Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 [6] (Tamberlin J). The test is that stated by Barwick CJ at 128 - 129 in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125: Universal Music Australia Pty Ltd v Cooper [7] (Tamberlin J); Review Australia Pty Ltd v Red Berry Enterprises Pty Ltd [2003] FCA 1009 [5] (Heerey J). It would be futile to order that a person be joined as a defendant if the material before the court disclosed that if the person, having been joined as a defendant, applied for summary judgment the application would succeed.
Consideration
I turn then to consider the relief which is sought against the wife’s brother in the husband’s existing application for final relief:
8. A declaration be made that 6 units located at Lot […] of [XX Real Estate], [Country UU] were and are held on trust by the 6th Respondent for the benefit of the Applicant.
The wife’s brother, Mr AJ, was, according to the documents annexed to the affidavit of the husband, the registered proprietor of a number of parcels of real property in XX Real Estate, City AK, Country UU in late 2021.
The husband says that the wife’s brother holds 5 (or 6) of the units for the wife. The husband says he gave the wife’s brother $75,000.
The chronology appears to be as follows:
(a)2015 – the husband says the wife told him her father had gifted her and her siblings “two large parcels of land”. The sibling group would appear to consist of six children according to the husband’s affidavit. The wife denies the conversation and the receipt of a gift of land from her father.
(b)2016/17 – the husband says the wife’s brother indicated he had developed a number of units on the land at a cost of AUD 3 million and required $500,000 to complete the work at which time the wife’s entitlements would be 5 units or more if the husband provided funds. The wife denies this arrangement. The husband says he borrowed money and paid $75,000 to the wife’s brother after which he understood the wife would receive an additional unit so as to bring the total to 6 units. The wife denies this arrangement.
(c)2018 – the husband says one unit was sold.
(d)2019 – the husband says one unit was sold.
(e)30 June 2020 the parties separated.
(f)October 2020 – the husband says the wife’s brother asked for $40,000 to facilitate transfer of the units into the wife’s name.
(g)late 2021 – the husband says one unit was sold.
While there are documents attached to the husband’s affidavit, they do not include any documents which demonstrate the land was transferred from the wife’s father to the wife’s brother.
The figures which the husband ascribes to the improvement of the land appear to be out of keeping with the documents attached to his affidavit.
Is the wife’s brother a person who may be directly affected by the making of a declaration?
The declaratory final relief does not bind the wife’s brother – in so far as it does not require him to do anything or take any action.
The second question that I must determine is whether the husband has established an arguable case such that joinder is necessary.
The husband establishes that the wife’s brother owns property. He deposes to conversations with the wife’s brother. The wife denies any conversations or knowledge of any arrangement whereby her brother holds property on her behalf.
The husband’s contention and the wife’s denial means that whether or not the property in Country UU is held on trust for the wife is an issue in the proceedings. It will remain in issue whether I join the wife’s brother or not. If orders requiring the wife’s brother to do something were sought, then I would have no hesitation in making him a party – his joinder would be, in a real sense, “necessary”.
If the husband is ultimately determined to be accurate in his representation of the ownership of the property the participation of the wife’s brother may, as I raised with counsel, be necessary in order to have valuation evidence. But, it would be inevitable at this stage that formal valuation (even if possible – and there is no evidence) would necessitate vacation of the hearing dates. The concept of that which is necessary to determine the dispute must include some notion of what steps are reasonable and proportionate in the context of the litigation as a whole.
I have not heard any concrete proposal about valuation. But I do have some evidence of value in the husband’s own evidence. The present evidence being the best evidence available is contained in the transfer documents and supports the conclusion that even if the declaration were to be made as sought, the value of the property is de minimis in the context of the husband having accumulated $502,464 of legal fees according to his most recently filed costs notice (December 2023) and the wife having accrued $439,256 in legal fees according to her most recent costs notice (February 2024).
The husband bears the onus of establishing the two matters in the Rules:
(1)that the rights of the wife’s brother are directly affected; and
(2)that the wife’s brother is a necessary party (as opposed to a witness) to determine all issues as between the parties.
I am not satisfied that the proposed third party would be directly affected by the making of the declaration if made. The reason for that conclusion is that a declaratory order is one which merely declares what the rights are between parties (here the wife and her brother). If a declaration were to be made in reliance upon s 78 of the Act, the husband seeks no consequential orders. This is unsurprising since the property is located outside Australia. In circumstances where the wife decries any rights, it is difficult to see that even if the declaration were made it would have any direct effect on the proposed third party.
The test is conjunctive. The applicant must also demonstrate that the joinder is necessary (as opposed to merely useful or expeditious). The applicant has not established necessity.
INTERIM PARENTING
The parenting aspect of this Application in a Proceeding relates to the parties’ three children, X born 2007 (aged 16), Y born 2010 (aged 13) and Z born 2018 (aged 5) (collectively “the children”).
The law
These are interim parenting proceedings governed by Pt VII of the Act.
Unlike a final hearing where the evidence is tested via cross-examination, the Rules provide that interim hearings are short and conducted on submissions. However, the guiding principle in this abridged proceeding remains the requirement that all orders must be made having regard to the children’s best interests as the paramount consideration.
In order to determine what parenting orders will be in the best interests of the child, regard is to be had to those matters in s 60CC of the Act which are applicable to the specific circumstances of these children. It is important to understand that s 60CC of the Act is divided into two parts - primary considerations and additional considerations. The primary considerations in subsection (2) are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Importantly, pursuant to subsection (2A), in applying the considerations set out in subsection (2) the Court is to give greater weight to the considerations set out in paragraph (2)(b). That is, that of the two considerations the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence takes precedence.
In order to determine what orders will be in the best interests of these children, I must have regard to the available evidence about their needs, views, relationships with their parents and any risk issues which present.
Section 60CG of the Act requires the Court to consider the risk of family violence:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The procedure to be followed in this interim parenting hearing is that set out by the Full Court in the matter of Goode and Goode (2006) FLC 93-286:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even if the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In an interlocutory parenting matter such as this, the fact that findings may not be possible does not mean that evidence which raises questions of risk be dismissed because no finding is yet available. In Marvel & Marvel (2010) 43 Fam LR 348 (cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), their Honours observed at [122]-[123]:
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Consideration
There are existing interim parenting orders which were made on 19 May 2022. Those orders provide for supervised time between the children and the father once a week for two hours. It is uncontroversial that only Z has attended time with the father in accordance with those orders.
The father brought an application to vary those interim orders, which I heard and determined on 13 July 2023. I dismissed the father’s application.
In my reasons for judgment (Shamon & Shamon (No 9) [2023] FedCFamC1F 586) I said:
33.The following relevant matters are agreed or uncontested in the context of these interim proceedings:
(a) [Z] and the father have a loving relationship.
(b) [Z] enjoys supervised time with the father.
(c) The father has a capacity to be an appropriate parent.
(d)Supervised time between the father and [Z] has occurred for a period in excess of 12 months.
(e)Neither [X] nor [Y] have participated in supervised time whilst the supervised time order has been in place.
(f) The ADVO which was previously in place has been discharged.
(g)The father’s appeal against the conviction for breach of ADVO was successful.
(h)The parties have agreed in principle to the older children participating in family therapy.
These matters remain agreed although the therapy for the child Y has been disrupted in circumstances discussed below.
Both parties and the Independent Children’s Lawyer (“ICL”) focused in their submissions on an assessment of whether there had been a significant change of circumstances so as to warrant revisiting the existing order. Counsel for the mother noted that the father having attending therapy, and the supervised time progressing well were not changed circumstances.
The father’s application seeks that the interim order be varied in two ways: firstly, by increasing the time from two to three hours and, secondly, by adding an additional block on a Wednesday afternoon/evening. He also seeks some orders which would introduce FaceTime communication with Z for half an hour on two occasions per week.
The mother opposes the application although she has indicated in open communication that she would not oppose the two-hour block on a Saturday being extended to three hours.
The ICL says that there is merit in ordering an extension of the Saturday time given the close relationship between child and father and the fact that the reports demonstrate that Z enjoys the time she spends with the father. She otherwise submitted that, while there may be advantages of an extension of Z’s time at this stage and given the parental conflict, she did not support a further interim increase in time.
The application is made less than two months before the matter is due to be heard and determined on a final basis.
The significance of that is that the orders which the Court makes on a final basis may change again. Indeed, each party seeks a change.
The mother’s final parenting application seeks orders for Z to spend time with the father on a supervised basis once a week on a Saturday, initially for a three-hour period but increasing (and remaining supervised).
The father’s present final relief seeks a week about arrangement for all three children or in the alternative that they live with him.
The parties had agreed to an update of Dr RR’s expert report which would inform decision making at the final hearing. However, I was informed at the interim hearing that Dr RR is unavailable to prepare an updated report and it is the parties’ intention to provide Dr RR with the trial material and for the ICL to lead any evidence which may arise out of the expert’s consideration of that material orally at trial.
Dr RR couches the recommendations in her (untested) report as subject to the court’s assessment as to risk.
The agreed facts in this case have not significantly altered since the matter was last before the Court.
I will focus on the material which is pertinent to this interim application either because it is indicative of changed circumstances (or otherwise) or because it speaks to assessment of risk.
The mother’s affidavit material complains about the father attending upon her home (in late 2023). The father does not dispute that this occurred. While I appreciate the father would have been naturally concerned about his daughter’s hospitalisation it is difficult to understand why the father would attend upon the mother’s home absent explicit invitation given the issues in this case. Even on the father’s evidence, the event caused “heightened emotions” on his part.
The father again attended at the mother’s home without any explicit invitation and in circumstances where she had said to him three days previously via text “[d]on’t come here again uninvited”. Even if the father had a different perspective on what had transpired on the first occasion, his decision to attend a few days later, following receipt of the text, is provocative and lacking in insight and runs contrary to any assertion that circumstances between the parties have improved.
I cannot determine whose account of the events in late 2023 is accurate. But the finding that the father’s attendance at the mother’s home was unwelcome and repeated is squarely available.
At the hearing the ICL tendered correspondence with AL Psychology which related to recent events at the psychology practice. In early 2024 the parents and Y were to attend upon a psychologist, Ms AM. Mr Shamon had an arrangement with the psychologist (according to her notes) to attend for 5-10 minutes at the commencement of the session to “provide a summary of what he is hoping for within [sic] [Y’s] care”. The psychologist was surprised that the father was still in the waiting room at the conclusion of the session.
The father disputes the account given by the psychologist but that does not mean I can discount that in due course I may find that her account of witnessing “great distress on [Y] and [Ms Shamon’s] faces” is accurate.
In addition, the Principal of the practice set out what she had been told were the observations of her staff. Again, accepting that the father does not agree with the account, it is still necessary for me to consider that the father was said to have been observed “loudly proclaim[ing] “Your opinion matters hey?” in reference to a poster …asking for clients to leave …feedback”. In addition, she records that the father was heard to say to his former wife in the waiting room “smile, baby, smile”. Even if the person was mistaken and that father actually said “smile, [Ms Shamon], smile” (as he contends) I would consider this conduct to be disruptive, taunting and unhelpful.
The most significant agreed fact is that the impact of the father’s conduct is that the practice will not now assist the parties’ daughter Y.
The supervision of time in this case is not designed to protect Z from physical harm it is to protect her from psychological harm which may flow from being exposed to parenting which is not attuned to her need to maintain a close relationship with her mother and sisters. The supervision is in place to ensure that the time Z spends with her father is free from the prevailing conflict. Recent events underline its importance.
The father does not seek that the supervision be lifted. He merely asks for more time. Ideally, more time would have advantages to Z but it would require separation of Z from her mother on another day each week, it would require separation from her siblings – who have not been attending and, as counsel for the mother submitted, it would triple the current time which is occurring.
I am not satisfied that there has been a change of circumstances since July 2023 nor a significant change of circumstances and I am aware that the issue of an increase will be the subject of a final hearing with tested evidence including expert evidence commencing in about a month and a half.
That said, I accept that Z would benefit from an increase in the existing Saturday time. Her mother recognised the value to Z of an additional hour last year. It will allow for a broader range of activities.
At this stage, a FaceTime call is contraindicated. At Z’s age, her mother or a sibling would likely have to be involved. It would place the father audibly and visually within the mother’s home in circumstances of high conflict. In that regard I must think of all three children when evaluating the best interests of the children in making or declining to make that order.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 16 February 2024
SCHEDULE OF PARTIES
SYC 2375 of 2021 Respondents
Fourth Respondent:
MS G SHAMON
Fifth Respondent:
MR R SHAMON THE ESTATE OF THE LATE
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