Sienna and Sienna and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIENNA & SIENNA & ORS

[2019] FCCA 792

Catchwords:
FAMILY LAW – Parenting and Property – application in a case by paternal grandparents to be joined to parenting and property proceedings – granted.

Legislation:

Family Law Act 1975 (Cth), ss.65C(ba), 60B

Federal Circuit Court Rules 2011 (Cth), r.11.03

Applicant:

MS SIENNA

First Respondent:

MR SIENNA

Second Respondent:

MS A SIENNA

Third Respondent:

MR B SIENNA

File Number:

SYC 5044 of 2018

Judgment of:

Judge Bruce Smith

Hearing date:

5 February 2019

Delivered at:

Sydney

Delivered on:

5 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Parker

Solicitors for the Applicant:

Parker Law

Counsel for the First Respondent:

Ms Debby

Solicitors for the First Respondent:

McPhee Kelshaw

Counsel for the Second and Third Respondents:

Mr Batey

Solicitors for the Second and Third Respondents:

Jacqueline Kyle Family Law

ORDERS

The matter be listed on 18 July 2019 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
Ms A Sienna (“second respondent”) and Mr B Sienna (“third respondent”) be granted leave to intervene in these proceedings pursuant to Rule 11.03 of the Federal Circuit Court Rules.
The obligation to comply with the subpoena filed on 15 October 2018 issued to the third respondent be stayed pending further order of this Court.
Within 28 days, each party comply with their obligations under Part 24 of the Federal Circuit Court Rules 2011 (Cth) for full and frank disclosure.
Within 28 days, the second and third respondents file and serve their material in support of the orders sought by them, upon which they intend to rely.
The second and third respondents are excused from filing a Financial Statement.
Pursuant to section 62G(2) of the Family Law Act1975 (Cth) the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975 (Cth);
(b)to consider issues raised in the Family Consultant’s Memorandum to Court;
(c)to profile of the parents (and other significant adults);
(d)to assess the parents interactions (and those of other significant adults);
(e)to assess the children’s developmental and emotional state;
(f)to assess the relationship of the children to the parents (and other significant persons);
(g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(h)to assess the proposed and actual home environments; and
(i)to assess the proposals of each party as to the children’s future.
The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.
The report be released as soon as practicable, and unless otherwise arranged with Chambers.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.
The parties are to attend a Financial Conciliation Conference in this Registry on 10 May 2019 at 10AM.
The Registrar will undertake a compliance check on 26 April 2019 at 9AM.
Each legal representative and any self-represented party is to attend the compliance check by telephone.
The dial-in details are:
(a)… and guest passcode number …
Each party must within 28 days from this date:
(a)do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 24.03 of the Federal Circuit Court Rules 2011 (Cth) as are relevant to these proceedings;
(b)comply with Rule 24.04 of the Federal Circuit Court Rules 2011 (Cth) by serving on each other copies of the documents provided for therein as
(c)provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.
At least 7 days before the Conciliation Conference the parties must deliver to the Registrar conducting the Conciliation Conference a collaboratively prepared single balance sheet setting out all assets, liabilities and financial resources which each party asserts are relevant to the determination of this matter, and the document shall have footnotes which explain the differences between the parties in relation to any disputed item.
Any documents required for the Conciliation conference are to be emailed to [email protected].
At least 7 days before the Conciliation Conference each party must send to the other and to the Registrar copies of:
(a)a completed Conciliation Conference document, being a document setting out that party’s assertions as to:
(i)the percentage share of the nett asset pool to which they are entitled;
(ii)the respective contributions of each party to the nett asset pool (expressed as percentages);
(iii)any adjustment to be made pursuant to section 75(2) of the Family Law Act1975 (Cth) (expressed as a percentage); and
(iv)the facts alleged by each party in support of each of the foregoing.
(b)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute, and valuations of any superannuation interests;
(c)if there is a significant discrepancy between the market appraisals obtained by the parties, a single expert valuation of all relevant property;
(d)the orders required to give effect to their settlement proposal;
Prior to the Conciliation Conference a lawyer must give to their client written notice setting out:
(a)the costs and disbursements incurred by the party up to and including the event; and
(b)the estimated future costs and disbursements of the party up to and including each future court event.
Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2011 (Cth), Interim Orders be made in accordance with the document marked “SYC5044/2018” dated this day 5 February 2019 and attached hereto.
The Solicitor for the first respondent is to forward an electronic typescript in Word form of the document marked “SYC5044/2018” to the Court within 48 hours.

AND THE COURT NOTES THAT:

A.The Court will consider an ICL at a later date if the matter cannot be resolved.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth), 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Sienna & Sienna & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5044 of 2018

MS SIENNA

Applicant

And

MR SIENNA

First Respondent

MS A SIENNA

Second Respondent

MR B SIENNA

Third Respondent

REASONS FOR JUDGMENT

This is a decision ex tempore in respect of an application in a case brought by Ms A Sienna and Mr B Sienna who are, respectively, the paternal grandmother and paternal grandfather.
The application was filed on 18 December 2018 and seeks orders inter alia that Ms A Sienna and Mr B Sienna be granted leave to intervene in these proceedings pursuant to r.11.03 of the Federal Circuit Court Rules 2011 (Cth).
The statutory basis of the application is set out in s.65C(ba) of the Family Law Act 1975 (Cth) which says relevantly:
A parenting order in relation to a child may be applied for by… a grandparent of the child
I note that though not strictly relevant to the basis of the application the provision supports the object s.60B which says (emphasis added):
(1) The objects of this Part are to ensure the best interests of the children are met by…
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):
…
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
The application is supported by affidavits of the paternal grandparents sworn by the grandmother on 11 December and filed on 18 December 2018 and by the grandfather on 18 December 2018 and filed on that date. It is not necessary for the purposes of this decision to go through all the material in detail. They are relatively short affidavits in similar terms.
In effect, they say, starting with the grandmother, that:
I met [X] on the day of his birth and have had a strong relationship with him since that time. I have a deep involvement in his care and development since birth. Mr Sienna and Ms Sienna live ….. my husband and I on four separate occasions after [X] was born. These periods range from two weeks to six weeks. I was very involved in [X]’s care during the first year of his life… I then saw [X] normally twice per week.
I cared for him overnight at least once per week That was – end quote. I know that was in 2013. In 2014, I continued to care for [X] overnight or for the day at least once per week as both Mr Sienna and Ms Sienna had regular work schedules. In 2015, I continued to care for [X] around one night per week, also on occasions during the day. In 2016 and ’17, I took [X] to preschool on a number of occasions each week if Mr Sienna or Ms Sienna were busy and -
The paternal grandfather gives evidence in identical form, which has its own issues, but for the purposes of an interim application of this nature, I draw nothing adverse from that. It seems to me they are merely saying that they were deeply involved in the child’s life.
They also say in respect of the application to intervene in the property proceedings that they have loaned the father, their son, money over the course of the relationship in the amount of $107,541.
Relevantly, at paragraph 26, it is said that moneys loaned to the father included moneys to fit out a studio at the Property C property, being the former matrimonial home, for painting of a studio (although it is not entirely clear to me what this may have involved precisely) and mortgage top-up, and those sums come to be in excess of $50,000. These are said to found a form of equitable interest in the real property which constitutes the former matrimonial home, which is part of the marital pool and indeed the primary asset the subject of these proceedings.
The application is supported by the father but is opposed by the mother. The mother’s affidavits filed on 9 August and sworn on 31 January 2019 and filed on 1 February 2019 were read. They mainly deal with other matters. There is a contest about the nature and extent of the involvement by the paternal grandparents with the child the subject of the proceedings, however, there is no suggestion that they have not been involved. There is no allegations of family violence against the paternal grandparents as opposed to the allegations that are made at some length in respect of the father.
I note that in respect of the question of the grandparents’ involvement with the child, exhibit 1 was tendered, being an email from the mother to the paternal grandparents of 25 September 2017 at 2.42 pm where the mother writes to the paternal grandparents saying:
…just wanted to see your availability for these days with Mr Sienna away and [X] on holidays – Friday 29 September, Sunday 1 October, Monday 2 October, Saturday 7 October, Saturday 21 October, Tuesday 24 October -
There are notes for each of these days. I will note that in respect of 24 October, it also says:
I have got doctors appointments in … for 1 pm for I may or may not need you to get [X] from preschool considering trains are only going once an hour … I was also wondering if Ms A Sienna would be keen to take any driving while Mr Sienna is away … he is going to leave his car here, so I could practise … my friend Ms D’s sister took me in a car a couple of times but I would much rather prefer practising in ours because I’m more used to it and freak out less.
So there is evidence which shows that despite the unfortunate nature of the relationship between the mother and the paternal grandparents at the moment, there clearly was a good relationship previously and a relationship in which the paternal grandparents did have quite a significant involvement in providing assistance to the parents when the child needed care and supervision and the parents were not available or needed some assistance.
The police records were tendered and that is exhibit A, showing not that there is an allegation of family violence against the grandparents but noting, as I understand the relevant part to be, which is tagged, that the father attended at police in respect of an AVO with his mother and the note that, in particular:
…the person of interest and his mother was also concerned that the victim requested the AVO to benefit her application for custody with the Family Law Court -
This is said to show that the paternal grandmother is aligned with the father in the case. It was submitted that this application is no more than an extension of the abuse the mother has suffered at the father’s hands supported by the paternal grandparents.
Now, whilst I have some sympathy with the mother’s position, it seems to me that at the moment where I can make no factual findings, I must merely consider the question of whether there is any reason for which I would not allow the grandparents application where they say that they seek time separate from the father and independent of his rights to time with the child, noting that he is a musician who is often not available.
Is there any reason that I would find this is spurious or so unmeritorious that the Court would not even allow them to be heard in respect of parenting that at this stage? I have been provided with no material that would make that out, and, indeed, the material shows prior involvement of the grandparents extensively in the child’s life and that there was formerly a good relationship with the mother, and the absence of any specific allegation of what one might call disentitling conduct on their behalf by way of family violence. Accordingly I allow the grandparents to intervene in respect of parenting.
In respect of the property issues, whilst I have concerns about the quality of the argument being made in respect of the equitable interest, nevertheless again this is a preliminary determination based upon extremely limited evidence. The question is whether there is an arguable and justiciable case, or whether I should be satisfied that it is not arguable so that I would not allow them to intervene. Again, I do not think there is any basis upon which I could make the finding that it is not arguable.
So it seems appropriate to me that orders be made would allow them also to intervene in the property proceedings. I say that noting that having seen the material so far, I do have concerns about the merits of the grandparents’ property cases, but I am in no position to determine that, nor would anything I say today impact upon what I might do at the end of a fully contested hearing where I will have the benefit of all the evidence.
In these circumstances, I note that the mother’s concern about the question of costs and her costs on the way through unfortunately cannot be dealt with, but I do not think that her concern about additional costs is so great as to outweigh the usual presumption that someone who has a case to be heard before a Court should be allowed to appear and have the Court hear it.
I do note that if it turns out and the mother can make out the case that this is merely a forensic trick to impose additional costs and difficulty upon her, the Court would, of course, have powers in respect of costs orders, including indemnity costs orders, that could be made against the paternal grandparents. That may not assist her now but is a balancing factor which also, in my view, supports the making of the order sought.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith

Date: 1 April 2019

[2019] FCCA 792

5 February 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Appeal

Discovery

Stay of Proceedings

Costs

Standing