FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAN & CHAN & ANOR | [2015] FCCA 265 |
| Catchwords: 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 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…
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- Chan and Chan and Anor [2015] FCCA 265
- Case
- [2015] FCCA 265
- Decision Date
CaseChat Overview and Summary
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
1.
The Applicant MS CHAN is granted leave to intervene in these proceedings.
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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