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Where a grandmother’s application to intervene was dismissed: Roman & Middleton & Anor [2015] FCCA

This case involved two children with different fathers. The father of the youngest child applied for an order that both children live with him in spite of the fact that he was not the biological father of the older child.

The paternal grandmother supported the father’s application and also applied to intervene to be a party to the proceedings. The mother opposed the grandmother’s application.

In determining whether or not to grant leave for the paternal grandmother to intervene, the Court confirmed that there is a wide discretion pursuant to section 65C of the Family Law Act (the section of the Act which governs who may apply for a Parenting Order) as to whether a party should be joined as a party to proceedings.

Having regard to KAM and Aldridge & Keaton the Court deemed it most appropriate to adopt a three step process to determine if the paternal grandmother should be allowed to intervene. The first step the Court considered was whether or not the terms and requirements of s65C had been met. In this case the Court determined that the paternal grandmother satisfied the requirements of s65, noting that she satisfied the criteria outlined at s65C (ba) (as she was a grandparent) for the youngest child and s65C (c) (as she was a person concerned for the care, welfare or development of the child) for the eldest child. Having satisfied those requirements the Court then considered whether the paternal grandmother should be granted leave to become a party to the matter.

In opposition to the paternal grandmother’s proposed intervention, the mother submitted and the Court accepted that if the father was successful in his application regarding time with the youngest child then there would be opportunity for the paternal grandmother to spend time with the child then. Moreover, the Court noted that this would also be the case if the father’s application for a change of residency was successful. Therefore the grandmother’s application to intervene was dismissed as she could see the children during the father’s time.

If the paternal grandmother’s application had been successful and she was granted leave to intervene then the Court would have considered the third step, which is a consideration of what parenting order would be in the children’s best interests.

In spite of dismissing the paternal grandmother’s application, the Court noted that her application did have merit and said that she should have leave to make a similar application after the production of a family report. The grandmother was also asked to be part of the assessment process in regard to the family report.

By Nicholes Family Lawyers

 

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