Chan & Chan & Anor - [2015] FCCA 265

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

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).

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

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.
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

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 18^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan & Chan & Anor

Details

AGLC: Chan and Chan and Anor [2015] FCCA 265
Case: [2015] FCCA 265
Decision Date: 12 February 2015

CaseChat Overview and Summary

In the matter of *Chan & Chan & Anor*, heard before Judge Scarlett, the application concerned leave to intervene in parenting proceedings. The applicant, Ms Chan, who is the former wife of the father in the primary parenting dispute, sought to intervene in order to make her own applications regarding the child's time with her, specifically during school holidays.

The central legal issue before the court was whether Ms Chan was a "person concerned with the care, welfare and development of the child" for the purposes of the *Family Law Act 1975* (Cth), thereby granting her standing to apply for parenting orders. This required the court to determine if she had made out a *prima facie* case for such standing.

Judge Scarlett reasoned that Ms Chan had established a sufficient connection to the child to warrant granting her leave to intervene. The court applied the principles governing intervention in family law proceedings, focusing on whether the applicant had demonstrated a genuine interest and a plausible basis for seeking orders concerning the child's welfare. By making out a *prima facie* case that she was a person concerned with the child's care, welfare and development, Ms Chan satisfied the threshold for intervention.

Consequently, the court ordered that Ms Chan be granted leave to intervene in the proceedings.

Orders

Orders of the court

The Applicant MS CHAN is granted leave to intervene in these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.