FEDERAL CIRCUIT COURT OF AUSTRALIA
CHAN & CHAN & ANOR	[2015] FCCA 265	

Catchwords: 
FAMILY LAW – Children – parenting – application for leave to intervene in parenting proceedings – application by father’s former wife to intervene – where intervener wishes to apply for orders that the child will spend school holiday time with her.

PRACTICE AND PROCEDURE – Jurisdiction – whether applicant is a person concerned with the care, welfare and development of the child – where applicant has made out a prima facie case that she has standing to bring an application for parenting orders.	

Legislation:
Family Law Act 1975 (Cth), ss.64C, 65C	

Cases cited:
Chan & Phu [2010] FMCAfam 1084
Chan & Phu [2012] FMCAfam 1300
Chan & Phu [2013] FCCA 556
KAM & MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; FLC 92-847
Musgrove & Panshin [2014] FCCA 1680	

Applicant:	MS CHAN	

First Respondent:	MR CHAN	

Second Respondent:	MS PHU	

File Number:	SYC 1714 of 2010	

Judgment of:	Judge Scarlett	

Hearing date:	4 February 2015	

Date of Last Submission:	4 February 2015	

Delivered at:	Sydney	

Delivered on:	12 February 2015	
REPRESENTATION
Solicitor for the Applicant:	Ms Adams	

Solicitors for the Applicant:	Levis Stace & Cooper 	

Solicitor for the First Respondent:	Mr Tiyce	

Solicitors for the First Respondent:	Tiyce Lawyers	

Second Respondent:	In person	

Counsel for the Independent Children's Lawyer:	Ms Cantrall	

Solicitors for the Independent Children's Lawyer:	Legal Aid NSW	

ORDERS
(1)	The Applicant MS CHAN is granted leave to intervene in these proceedings. 

IT IS NOTED that publication of this judgment under the pseudonym Chan & Chan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYC 1714 of 2010
MS CHAN	
Applicant

And

MR CHAN	
First Respondent

MS PHU	
Second Respondent

REASONS FOR JUDGMENT
Application
1.	This is an unusual Application. The Father’s former wife seeks to intervene in the substantive proceedings by the Father against the Mother where he seeks orders that the child should live with him and spend time with the Mother. The basis for Ms Chan’s Application is that she claims to have developed a close relationship with the subject child, [X], who is about to attain the age of fourteen, and she would like to support the child by having her spend regular school holiday time with her at her home in Tasmania.
2.	The Father initially opposed the Application to intervene, but has now decided to consent to it. The Mother vehemently opposes the Application. The Independent Children’s Lawyer initially took no position, but now consents to the Application.   
Background 
3.	The child in question, [X], was born on [omitted] 2001. The parents separated in November 2001, when the child was about eight months old. The child was living with the Mother until 18th June 2013, when orders were made after an interim hearing providing that:
a)	the Father should have sole parental responsibility for the child;
b)	the child should live with the Father forthwith; and
c)	the child would spend time with the Mother on alternate weekends, during school holidays and other times.
4.	The parties had been engaged in litigation over the child for some years. There were orders made by Cohen J in the Family Court in 2003 and Le Poer Trench J in 2007. 
5.	There were contravention proceedings brought by the Father in 2010 which led to a variation of the earlier orders.
6.	The Father brought an application in 2012 seeking a further variation of the orders. An interim application was dismissed but an order was made to have the child’s interests separately represented by a lawyer under s.68L of the Family Law Act 1975 (Cth). 
7.	The Mother has not formed a new relationship. 
8.	The Father, however, re-partnered in 2002 and married Ms Chan in 2005. They separated in 2013 and Ms Chan now resides in Tasmania. 
The current Application 
9.	Ms Chan deposes in her affidavit she has been actively involved in [X]’s life since the child was one year old. Even though she has separated from the Father, she has continued her relationship with the child. She states in her affidavit that:
	Since Orders were made in these proceedings on the 18th June 2013, [X] has spent:
	a.	at least one week of every school holiday period with me in Tasmania;
	b.	at least one weekend during every school term with me in Tasmania; and
	c.	I have made several trips to Sydney to see [X], including May 2013 to attend her school Mother Daughter lunch.
10.	Ms Chan also deposes that she has made [X] the sole beneficiary in her Will. She maintains a close relationship with the child even though she lives in Tasmania, communicating regularly with her by telephone, text and Skype.
11.	Despite her separation form the Father, Ms Chan maintains an amicable relationship with him and intends to continue on that basis. She states that she is seeking leave to intervene because she believes it is important for [X] that she maintains her relationship with her. She does not wish to undermine the Father but hopes that he will see her application as support for him and the child. She states that:
	I have made this application to secure the very important relationship that [X] and I have and maintain certainty of that relationship in the future for both [X] and me.
12.	Ms Chan proposes that, if she were granted leave to intervene, she would seek orders that:
a)	the child would spend one week of each of the Term 1, Term 2 and Term 3 school holidays with her;
b)	the child would spend at least two weeks of the Christmas school holidays with her; 
c)	that she would spend at least one weekend with her in Sydney each term;
d)	that she continues to be involved in and informed of activities relating to the child’s schooling; and
e)	when the child would not be with her she would be with her father.
13.	The Mother objects to the Application, submitting that this is a ploy by the Father and an attempt by Ms Chan to obtain money from the Father. She denies that Ms Chan is a significant part of [X]’s life and says that [X] does not even like her.
14.	The Father now consents to the Application. Mr Tiyce, who appeared for him, submitted that Ms Chan clearly has a concern with the child’s care, welfare and development. The Application is not part of some arrangement between his client and Ms Chan, as they are not necessarily in the same camp.
15.	Counsel for the Independent Children’s Lawyer, Ms Cantrall, submitted that there is a strong relationship between Ms Chan and [X].
Whether the Applicant has standing 
16.	Mr Tiyce referred me to an earlier decision of mine of Musgrove & Panshin, where I considered the law in relation to applications for parenting orders by a party other than a parent or a grandparent.
17.	Section 64C of the Family Law Act 1975 provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
18.	Section 65C sets out who may apply for a parenting order:
	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.
19.	Thus, for Ms Chan’s Application to intervene to succeed, she must demonstrate that she is a person concerned with the care, welfare or development of the child. This has been described by Burr J of the Family Court in the decision of KAM & MJR as a threshold test”. 
Conclusions
20.	The Mother is opposed to the Application, seeing it as a ploy by the father and Ms Chan, with the connivance of the Independent children’s Lawyer, to replace her as the child’s mother. However, what this court must bear in mind is:
a)	Whether Ms Chan meets the threshold test as a person concerned with the care, welfare or development of the child; and
b)	If she is permitted to intervene, whether it would be in [X]’s best interests for any parenting orders to be made in her favour.
21.	It is noteworthy that in a Family Report prepared for proceedings in the Family Court in 2007, the Family Consultant noted even then that the child “was observed to interact warmly with each parent and with Ms Chan”. 
22.	It is not without concern that the addition of another party to the proceedings would necessarily prolong the time required for a final hearing, which would quite likely exceed the four days that is normally seen as the limit in length for matters to remain in this Court. It would be likely, therefore, that adding Ms Chan as a party to the proceedings would almost certainly bring about a transfer to the Family Court of Australia, which has the resources to deal with cases that are estimated to take more than four days to hear.
23.	That is a matter that must be taken into account, but it is not the deciding factor.
24.	I am satisfied that Ms Chan has demonstrated that she is a person concerned with the care, welfare or development of the child [X]. As such, she meets the “threshold test” in s.65C(c) of the Act.
25.	I propose to grant the Application to intervene. 
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:  

Date:  12 February 2015