Birkett and Birkett and Anor

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRKETT & BIRKETT & ANOR [2017] FCCA 2503
Catchwords:
FAMILY LAW – Summary dismissal Application by parents in relation to maternal Grandmother’s Application to spend time with children – parents and Grandmother totally estranged – Grandmother has not spent time with the children for approximately 18 months with limited time beforehand – principles in relation to summary dismissal – consideration of “best interests” of children also relevant factor – need to protect children from exposure to entrenched family discord – application granted.

Legislation:

Family Law Act 1975 (Cth), Part VII, 60B(2), 64B

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499
Aldridge v Keaton (2010) 42 Fam LR 369
Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Anor (2011) 203 IR 411
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; (2009) 83 ALJR 951
Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (CAN 126 049 214) and Others (No 2) (2010) 188 FLR 463; (2010) 272 ALR 280; [2010] FCA 919
Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392; 165 IR 464
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FLR 124; (1986) 71 ALR 73
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; (1998) 72 ALJR 1290

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; (2006) 80 ALJR 1100

Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720
C v Commonwealth of Australia (2015) 254 FCR 81; [2015] FCAFC 113
Church v Overton (2009) 40 Fam LR 357
Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; (2007) 245 ALR 172
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; 176 IR 245
Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141
Deputy Commissioner of Taxation v Southgate Investments Funds Limited [2010] FCA 1298
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303
Fair Work Ombudsman v Secom Australia (ACT) Pty Limited [2013] FCCA 649
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Geneva Laboratories Ltd v Nguyen (t/as Health Line Pharmacy Sydney (2015) 110 IPR 295
Health World Ltd v Shin-Sun Australia Pty Ltd (2010) 240 CLR 590

Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213; [2010] FCA 1462
Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286
Imobilari Pty Ltd v Opes Prime…

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Details
Case
[2017] FCCA 2503
Decision Date

CaseChat Overview and Summary

In the matter of *Birkett and Birkett and Anor*, heard by Judge Neville, the dispute concerned an application by the Grandmother for orders relating to communication with her grandchildren, Y and X, and their parents.

The primary legal issue before the Court was whether to grant the Grandmother's application for orders concerning communication with the children, and if so, on what terms. The Court was required to consider the best interests of the children in determining the scope of any such orders.

Judge Neville reasoned that while it was in the children's best interests to receive birthday and Christmas cards from their Grandmother, and directed that such communication be passed on, the broader application for further orders was to be dismissed. This decision was made pursuant to section 17A of the *Federal Circuit Court of Australia Act 1999*.

Consequently, the Grandmother was permitted to send cards, but her application was otherwise dismissed. The Court ordered that each party bear their own costs, unless an application regarding costs was filed within 14 days of the orders being made.

Orders

Orders of the court

1.

The Grandmother be permitted to send birthday and Christmas cards to the children, Y and X, and their parents are directed to ensure that such communication is passed to the children;

2.

Otherwise, pursuant to s.17A of the Federal Circuit Court of Australia Act 1999, the Grandmother’s Application, filed 3rd May 2017, be dismissed;

3.

Absent any Application in relation to costs being filed within 14 days of the date of these Orders, each party is to pay his o0r her own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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