Willard & Fierro
[2022] FedCFamC1F 570
Federal Circuit and Family Court of Australia
(DIVISION 1)
Willard & Fierro [2022] FedCFamC1F 570
File number(s): SYC 7538 of 2021 Judgment of: BERMAN J Date of judgment: 4 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant makes an oral application for adjournment – Where the application is made without formality – Where the application is opposed by the respondents – Where the applicant is self- represented – Child’s best interests are the paramount consideration – Consideration of the impact of ongoing litigation on the child – Consideration of the merits of the substantive proceedings – Where there is no merit in the application and it out to be dismissed.
FAMILY LAW - PRACTICE AND PROCEDURE – Application – Dismissal – Standing to bring a parenting application pursuant to s 65C(c) Family Law Act 1975 (Cth) – Whether the applicant is a person or persons concerned with the care, welfare or development of the children the subject of the proceedings – Consideration of the meaning of “concerned with” – Nexus of concern with the care welfare or development of the child – failure to establish any basis as required under s 65C(c) – Child’s best interests are the paramount consideration.
Legislation: Family Law Act 1975 (Cth) ss 45A, 60CC, 65C, 65C(a), 65C(b), 65C(ba), 65C(c) Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175
Bemert & Swallow [2009] FamCA 5
Bigg v Suzi (1998) FLC 92-799
Kam v MJR (1999) FLC 92-847
Division: Division 1 First Instance Number of paragraphs: 57 Date of hearing: 4 July 2022 Place: Adelaide Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children’s Lawyer: Ms Watson Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania ORDERS
SYC 7538 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILLARD
Applicant
AND:
MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
4 july 2022
THE COURT ORDERS THAT:
1.The applicant’s oral application for adjournment of the proceedings is dismissed.
2.The applicant’s Initiating Application filed on 15 October 2021 in proceedings SYC7538/2021, and all extant applications, are dismissed.
3.The question of the costs of the Second Respondent and the Independent Children’s Lawyer is reserved.
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 the pseudonym Willard & Chaves has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings relate to the future parenting arrangements in respect of the child X (“the child”) now aged 14 years of age. With the consent of the mother, the child is in the primary care of the first respondent father, Mr A Fierro (“the first respondent”), who appears today as a self-represented litigant. The second respondent mother, Ms Bien (“the second respondent”) is represented by Mr Trezise and the Court is assisted by the involvement of an Independent Children’s Lawyer (“ICL”).
The matter comes before me today pursuant to an order made by the Honourable Chief Justice Alstergren on 9 June 2022. There are two files that are currently running together. The first is … of 2021, which relates to proceedings that were commenced by Initiating Application on 15 October 2021, by the applicant, Mr Willard “(the applicant”), who is the grandson of the first respondent.
The orders sought in the Initiating Application were relatively straightforward and sought that the applicant be allowed to communicate with the child via electronic means or otherwise and that the first respondent facilitate that communication.
That application was supported by an affidavit of Mr Willard filed on 15 October 2021. It is worth following the matters raised in the affidavit in order to determine what might be considered the basis upon which the applicant first sought orders. The affidavit of 15 October 2021, says as follows:-
3. I enjoyed communicating with my auntie [X] this year by telephone until the respondent stopped [X] from communicating with me for no reason. He does not let [X]’s mother [Ms Bien] talk to me either.
(emphasis in original)
Paragraph 4 alleges that the first respondent has blocked his mobile number and has had the child’s phone disconnected at that time for a period of three months. The applicant attributes the fact that he has not received a call, a text, or email from the child as being a result of the conduct of the first respondent.
Paragraph 5 of his affidavit says:-
I have a good relationship with [X] and she does in fact want to speak to me.
The Initiating Application was the subject of amendment on 6 February 2022. The orders sought in the application were significantly expanded although in a general sense, they relate to the ability of the applicant to communicate with the child with the addition of proposed order 13, which seeks:-
The applicant may visit the child at her residence on any weekend, school holiday, or public holiday upon reasonable notice to either the respondent, that being two days minimum prior notice.
The (Amended) Initiating Application of 6 February 2022, also joined the mother as the second respondent. The (Amended) Initiating Application was supported by a further affidavit of Mr Willard filed on 21 February 2022, which sets out some further communication between the applicant and the first respondent, by reference to a telephone call between them on 18 February 2022.
I am uncertain as to the basis for Mr Willard to set out the communication between he and the first respondent, but it may be that the affidavit sets out the applicant’s attempt to then make contact with the child at 6.58pm on 18 February 2022, and his belief that his ability to contact the child’s phone was blocked. It appears that the issue of the applicant’s ability to contact the child is overshadowed by the larger issue of the parenting application as between Mr Fierro, who is the first respondent’s son, and the applicant in the collateral proceedings ….
background
The applicant is the child’s nephew and was born in 2003. He is the first respondent’s grandchild from his daughter of a previous relationship. It appears that the applicant either resides with, or has a close connection to, his uncle Mr Fierro.
The first respondent was born in 1949. The second respondent, was born in 1989. The child is the only child of the first and second respondent’s relationship. The parties separated in 2014. However, as a result of a continuing business connection and a general atmosphere of goodwill between them, both respondents set out in their respective affidavits that they have an amicable co-parenting relationship and remain living together.
The father has retired. The mother remains the principal of the parties’ business. There is broad agreement that the first respondent is the child’s primary carer.
The position adopted by the first and second respondents and also, it appears by implication, the ICL, is that there is no evidence before the Court that the child has any relationship with the applicant. To the extent that they have met, it has been on scant occasions, and that more relevantly, the second respondent contends that the child does not want to have a relationship with the applicant.
It is readily apparent in the presentation of the proceedings, that there is clearly a significant issue in terms of an internecine dispute between the first and second respondents and Mr Fierro.
There are allegations of family violence, threats and intimidation as between the parties. It is raised that the significant background may invite a consideration as to whether the proceedings are vexatious. They are matters about which I do not need to make a determination but they are nonetheless apparent from the Court file and the proceedings generally.
The collateral proceedings involving Mr Fierro, arise following a consent order dated 2021 in the proceedings …, and his apparent dissatisfaction with the terms and conditions of that consent order and his subsequent application to set aside, or vary, those orders.
For reasons that will become apparent, some procedural history is required. As discussed, the applicant’s Initiating Application was filed on 15 October 2021, and an order was made by a Registrar on 1 February 2022, which joined the second respondent to the applicant’s proceedings.
The matter comes on today, following orders made by the Chief Justice on 9 June 2022. Those orders provided for the matter to be listed for a preliminary defended hearing on the application of s 65C of the Family Law Act 1975 (Cth) (“the Act”) for a period of two hours, with the intent and clear purpose, that the application and the opposition of the first and second respondents and the ICL, be heard and determined.
The first respondent maintains his position as a self-represented litigant. The second respondent is represented as is the ICL. The applicant appears as a self-represented litigant, and that has been the case now since he commenced the proceedings.
adjournment application
At the commencement of the hearing, the applicant made an oral application that the current proceedings be adjourned to a date no earlier than August 2022. The basis of the application is that he was “keen” to seek legal representation and that it may be the case that over the weekend, he had secured, or had found, a solicitor who was prepared to represent him.
To the extent that there was notice given of the application, it appears that the parties may well have received some notice by email, or otherwise this morning, immediately prior to the hearing. There is certainly no application and no affidavit in support of the application setting out what efforts the applicant has made to obtain legal representation, the inquiries that were current and ongoing and the extent to which there is a clear commitment by any solicitor to represent Mr Willard if the application for an adjournment is successful.
The application is opposed by all parties. The Court takes an application for an adjournment of proceedings, particularly in relation to parenting proceedings where they have been the subject of specific listing by order on 9 June 2022, very seriously. It is also appropriate that the Court do all that is required and give every reasonable opportunity to a party where they are self-represented, to be represented if that is what they ultimately determine.
Having said that, it is not the only consideration. A party to any application does not necessarily have a right to be heard. They have a right to have an opportunity to be heard. If they determine that they do not wish to be heard, or that there is a difficulty and that they are not able to obtain legal representation, then that is a matter for them and the matter is still able to proceed in circumstances where the Court is required to consider the best interests of the child as the paramount consideration. Whilst the proper representation of a party is important so that the Court can gain the relevant information that is required in order to make a proper determination of best interests, that is a matter that can be satisfied from other evidence.
In respect of any application for an adjournment, the Court is obliged to consider a range of factors as set out by the High Court in the often quoted decision of Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175. At [30], the High Court said as follows:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind referred to by r 502.
Also to be considered, is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory process.
The issue of the extent to which the applicant may, or may not, be assisted by legal representation was a matter raised and therefore the applicant was taken to have had proper notice. If the applicant wanted legal representation, it was a matter for him and a matter for him alone.
The application is without formality. There is no application seeking an order for adjournment of the current hearing to a date in the future and there is no affidavit that sets out the effort and the extent to which the applicant has sought, but has been unsuccessful in obtaining, legal advice. It is difficult to consider that in respect of an application that was filed in October of 2021, now more than eight months ago, that there is not formality to the application for an adjournment in circumstances where the opposition to the applicant’s proceedings, pursuant to s 65C, was apparent and was clearly understood by him in terms of the basis of why the orders he sought are opposed.
It is also a relevant consideration when considering an application for an adjournment, that the merits of the substantive proceedings be considered. That is not to say that merit is the only relevant issue. Even a weak, or arguable case, is a matter where the Court should err on the side of caution and permit an adjournment, albeit possibly with an order for costs.
The further basis upon which the application for an adjournment is opposed, is to be found in the submission of the ICL. The submission brings to the fore that in a parenting case, other aspects need to be considered, namely how would an adjournment impact upon the child, particularly a child caught in the current proceedings about which she is well aware.
I will come to those matters when considering the affidavit material placed on the Court annexing communications, which details the ICL’s position arising from her involvement with the child. It is sufficient for the purposes of disposing the oral application for an adjournment, to highlight that the ICL expresses concern as to the effect of the ongoing litigation on the child.
It is a truism, unlikely to be the subject of opposition, that ongoing litigation can never be seen as being in the best interests of a child. This is ongoing litigation and I am satisfied that the child is aware of the nature of the litigation and the circumstances in which she finds herself.
It is too easily ignored that the impact and effect on a child of being subjected to constant questioning, interview, and assessment in relation to ongoing parenting proceedings, may well subject the child to a risk of emotional harm.
In the circumstances of this case, and having considered the scant affidavit material that is provided by the applicant, I consider that there is no merit in the application for an adjournment and it ought to be dismissed.
application of s 65C of the Act
I now consider, that I should have regard to the application that is currently before me. There are two aspects to the proceedings. The first is the extent to which the proceedings are to be considered pursuant to s 65C of the Act, but also there may also be a consideration as to whether the application is so forlorn of hope, that it ought to be the subject of summary dismissal pursuant to s 45A of the Act.
The question to be considered, is whether the applicant has standing under s 65C of the Act and therefore should be joined to the proceedings and be permitted to seek orders in respect of the child, those orders being predominantly by way of communication orders but also, a proposed order to spend some time with the child.
Section 65C if the Act is straightforward in its parameters and provides as follows:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
It is immediately apparent that the applicant does not satisfy subparagraphs (a), (b), or (ba). Therefore, the determination of the proceedings is to be determined by consideration of subparagraph (c).
In Aldridge & Keaton [2009] FamCAFC 229, the mother and the applicant were in a same sex relationship when a child was conceived. They had attended at a fertility clinic where an unknown sperm donor was utilised to impregnate the mother. The applicant had no biological connection to the child. The child was born in 2006 and the relationship ended in November of that year. The child had spent time with the applicant, although the time was initially limited to a proportion of the school holidays and then to two nights a week. The mother reduced the time so that the time spent between the child and the applicant would only occur in her presence.
In granting the application and making orders for time between the applicant and the child, Chief Federal Magistrate Pascoe, as he then was, considered that the applicant had played a “major role” in the child’s life and was actively involved in the care of the child, noting the existence of a strong attachment between the applicant and the child.
The matter was taken on appeal, and at [54] of the Full Court judgment, three questions were considered:
(a) Does the legislation require a two step approach?
(b) Does s 65C imply a hierarchy of applicants some of whose applications should receive less or no weight than others?
(c)Does the Chief Federal Magistrate fall into error in identifying issues of parental responsibility and time, rather than determining whether any order should be made at all?
After careful consideration, the Full Court considered that no error had been demonstrated and found that in circumstances where an application is brought by a person other than a parent, a child or a grandparent, a two-step approach was appropriate for managing an application for parenting orders under s 65C(c) of the Act as follows:-
(1) Is the applicant a person concerned with the care, welfare or development of the child; and if so
(2) What order should be made in the best interests of the child.
Section 65C of the Act does not prescribe a hierarchy of applicants. All applications should be determined on the consideration of the best interests of the child. The Full Court said at [79]:-
In summary, in dealing with any parenting application by a person interested in the care, welfare or development of the child, a court will determine that application by applying relevant provisions for Part VII for determining whether making (or not making) a parenting order would be in the child’s best interests.
The Full Court noted that each parenting case will turn on its unique facts, but the Full Court set out what they considered was required by law at [81]:-
…the making of orders which promote the child’s best interests as the paramount consideration. In some cases, which we accept are likely to be infrequent, the best interests criteria may dictate a child live with a person to whom they are not biologically related and for that person to have an order for parental responsibility.
In Bemert & Swallow [2009] FamCA 5, Watts J found that that there had been no meaningful contact between a maternal great-grandparents and three of the four grandchildren for approximately 10 years and he made an order for summary dismissal. In explaining his decision, the following appears at [219]:-
…there was nothing arising out of the affidavit material of the maternal great grandparents or their submissions that would indicate how the children seeing their maternal great grandparents would promote the interests of the children. The maternal great grandparents are effectively strangers to the children. Blood relationship is not enough. Nor is any benefit [the maternal great grandparents] might get from seeing their great grandchildren a matter of any weight. The degree or strength of the nexus or concern with the care, welfare and development of the children in the circumstances of this case are insufficient to satisfy the threshold test...
In Kam v MJR (1999) FLC 92-847, Burr J considered, the extent to which a woman who had been a friend and partner of the child’s mother, had standing to make an application notwithstanding the objection of the child’s mother and father. It was conceded that the applicant had more than a mere interest in the child and had been involved in the child’s life and the capacity of contact and caring for the child.
Burr J considered the threshold test in the context of the wording of s 65C(c) of the Act at 85,928:-
3.2.12Thus it seems quite clear that it was Parliament’s intention that to satisfy the threshold test, the applicant need only show concern with the care, or concern with the welfare, or concern with the development of the child; that is, any one of the three rather than all of them.
The definition of “interest” in the Macquarie Dictionary is “the feeling of someone whose attention or curiosity is particularly engaged by something”.
Interest is not synonymous with the concept of concern with the care, welfare and development of a child. Parliament could have considered the retention of the concept of a person having an interest in the welfare of a child by expanding welfare to include care and development. The amendment to s 65C(c) of the Act goes further and requires a consideration of the extent to which a person’s concern is demonstrated by the extent of their involvement with the care, welfare or development of the child. It is not a subjective test, but rather requires an objective consideration of the nexus between the “fourth” respondents and the children.
It is also of assistance to consider the extent to which it is available to the court upon application by a party to dismiss an application. The full court considered the ability and the test for summary dismissal in Bigg v Suzi (1998) FLC 92-799. The ability to dismiss an application, or bring an application to stay proceedings, arise in circumstances where there is not a reasonable or probable cause of action or suit that the proceedings are vexatious and oppressive or abusive of the court process.
The test therefore requires an examination of whether the circumstances, as may be alleged, when taken at their highest would not allow for a reasonable or probable cause of action. In summary, is the case doomed to fail or has no reasonable likelihood of success.
I return to the affidavits of the applicant of 15 October 2021 and 21 February 2022. It is apparent that the documents are scant and that they provide little, or no assistance, that would enable the Court to consider the relevant causal connection as is required by a consideration of s 65C(c) of the Act.
In determining the application, I bring to account the matters raised in the affidavits of the second respondent of 23 March 2022 and of the first respondent of 6 April 2022. Both affidavits attest the extent to which they say, there has not been any relationship between the applicant and the child. It is noted that those affidavits are not the subject of challenge.
More relevantly, however, and going to matters that I have to consider in respect of s 60CC of the Act, I refer to the affidavit of Mr E of 1 July 2022.
The affidavit sets out the correspondence from the ICL and also provides a draft minute of order. Annexure A is a letter dated 16 June 2022, and I consider it important it forming part of my reasons. The letter from the ICL to the parties sets out:-
I met with [X] on 8 June 2022. I extend thanks for [Mr A Fierro] for facilitating that meeting, noting that he was not present for the meeting and no discussion occurred between myself and [Mr A Fierro].
[X] appeared to me to be relaxed in our meeting. She chatted freely with me in an open manner. She had a general understanding that [Mr Willard] (meaning [Mr Willard]) wants to talk to her and to spend time with her and that he and her parents were in Court about this.
During the course of our meeting, [X] provided me with her views on this and has consented to me providing the following to the parties:-
-She does not really know who [Mr Willard] is and identifies him as a stranger to her. She recalls meeting him maybe twice.
-She would prefer no contact with [Mr Willard]. She does not like speaking on the phone to anyone and particularly people she does not know. It makes her very uncomfortable.
-[X] could not identify a benefit for her in speaking to her nephew, or seeing him, as she didn’t want to.
That letter was forwarded to the applicant and the first and second respondent. I consider that in the circumstances of this case, the applicant has failed to establish any basis which would enable the Court to consider that he has satisfied the requirement of s 65C(c) of the Act. The application has been considered on its merits and there has been proper consideration given to the provisions of s 60CC of the Act.
I do not consider that the applicant has established that he is a person concerned with the care, welfare and development of the child.
Accordingly, I dismiss the (Amended) Initiating Application filed 6 February 2022.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 11 August 2022
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