MOTHER’S SISTER SEEKS TO INTERVENE PARENTING PROCEEDING WITH NO FINAL ORDERS SOUGHT
Ryall & Grave [2020] FCCA 2940 (30 October 2020)
This case involves the mother’s sister seeking to intervene the parenting proceedings regardless of the fact that she does not have any final orders or relief sought.
Facts:
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 court was faced with an Initiating Application filed by Mrs Mella and her husband Mr Mella (“the Mella's”), seeking leave to become parties.
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.”
Issue: Should the court allow the mother’s sister (and her husband) to intervene with the proceeding?
Law:
- Family Law Act 1975 s.60CC.
- Federal Circuit Court Rules 2001 rr.11.03, 13.10
Analysis:
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).
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.
The court does 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 the court interprets the submissions made, such may mean the creation of circumstances by way of orders to transition the child back to the mother’s care.
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.
Conclusion: It is on that basis that the court is satisfied that they have no reasonable prospect of success, and the court will dismiss their application.