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KENNEALLY & KENNEALLY & ALLEN

KENNEALLY & KENNEALLY & ALLEN

Case [2012] FMCAfam 921 20 August 2012

Parental Responsibility

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENNEALLY & KENNEALLY & ALLEN

[2012] FMCAfam 921

FAMILY LAW – Parenting – both parents deceased – jurisdiction of Court where there is no Respondent.

Family Law Act 1975, ss.4, 60B, 60CC, 60H, 61DA, 64B, 64C, 65C, 65D, 65DAA(5), 65G, 67ZC, 68L, 69ZN, 69ZQ, 69ZX
Guardianship Act 1987 (NSW), ss.9, 71
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.8, 9
Judiciary Act1903, s.2
Acts Interpretation Act 1901, s.15AB
Commonwealth Powers (Family Law – Children) Act 1986, s.3
Infants Custody and Settlement Act 1899
International Convention on the Rights of the Child, Articles 3, 5, 8, 12, 24 and 26
Magna Carta clause 40

Re K (1994) FLC 92-461
Harper & Brymer (1987) FLC 91-804
YYYYY & YYYYY [2000] FamCA 1711
P and P (1995) FLC 92-615
Secretary, Department of Health and Community Services v JWB & SMB (1992) FLC 92-293
Gillick v West Norfolk AHA [1986] AC 112
Re Rosie (Special Medical Procedure) [2011] FamCA 63
Re: Jamie (Special medical procedure) [2011] FamCA 248
Re: Baby D (No. 2) (2011) 54 Fam LR 313
Re: Bernadette [2010] FamCA 94
LNS v Persons Unknown [2010] EWHC 119 (QB)
Re Mark: an application relating to parental responsibilities [2003] FamCA 822
F & D [2005] FMCAfam 178
Re Jessie & Matthew: Residence application[2004] FMCAfam 656
Nayak [2011] FamCA 491
AIF v AMS [1999] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs v B and Another (2004) 219 CLR 365
In re X (A Minor) [1975] Fam 47
R v Davison (1954) 90 CLR 353
Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908) 8 CLR 330
Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134
The Queen v. Local Government Board (1902) 2 IR 349
Adkins v Children's Hospital of D C [1923] USSC 78
Muskrat v. United States [1902] USSC 164
Prentis v. Atlantic Coast Line Co. [1908] USSC 154
Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144

Applicant:

MR KENNEALLY

Respondents:

MR KENNEALLY (DECEASED) AND MS ALLEN (DECEASED)

File Number:

PAC 2870 of 2012

Judgment of:

Harman FM

Hearing date:

20 August 2012

Date of Last Submission:

20 August 2012

Delivered at:

Parramatta

Delivered on:

20 August 2012

REPRESENTATION

Solicitors for the Applicant:

Legal Aid Commission of New South Wales

Respondents:

No Appearance

ORDERS

The Paternal Uncle, Mr Kenneally born (omitted) 1980, shall have sole parental responsibility for the child, X born (omitted) 2002.
The child shall live with the Paternal Uncle.
Noted: The Paternal Uncle, Mr Kenneally born (omitted) 1980, is and shall be the only person with ‘parental responsibility’ of the child, X born (omitted) 2002, for the purpose of applying for, and being issued with, an Australian Passport.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then…

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 KENNEALLY & KENNEALLY & ALLEN

Details

AGLC: KENNEALLY & KENNEALLY & ALLEN [2012] FMCAfam 921
Case: [2012] FMCAfam 921
Decision Date: 20 August 2012

CaseChat Overview and Summary

The matter before the court involved a dispute over the care and parental responsibility of a child, X, born in 2002. The Paternal Uncle, Mr Kenneally, born in 1980, sought sole parental responsibility over the child. The legal issues the court needed to decide included the allocation of parental responsibility and the living arrangements for the child. The court also had to determine whether the Paternal Uncle should be the sole person responsible for applying for an Australian Passport on behalf of the child.

The court considered the welfare of the child as the paramount concern in making its decision. The Paternal Uncle demonstrated a stable and supportive environment, which was deemed beneficial for the child's upbringing. The court found that awarding sole parental responsibility to the Paternal Uncle was in the child's best interest. Consequently, the Paternal Uncle was granted sole parental responsibility, and the child was ordered to live with him. Additionally, the Paternal Uncle was designated as the sole person responsible for applying for an Australian Passport for the child.

The court issued several orders to formalise its decisions. Sole parental responsibility was granted to the Paternal Uncle, and the child was to live with him. Furthermore, the Paternal Uncle was designated as the sole person responsible for applying for an Australian Passport for the child. The court also directed that all exhibits and subpoenaed materials be returned to their respective owners or securely destroyed upon the expiration of the appeal period if no appeal was lodged. Lastly, the court provided a Fact Sheet detailing the obligations created by these orders, the consequences of non-compliance, and sources of assistance for complying with the orders.

Orders

Orders of the court

The Paternal Uncle, Mr Kenneally born (omitted) 1980, shall have sole parental responsibility for the child, X born (omitted) 2002.

The child shall live with the Paternal Uncle.

Noted: The Paternal Uncle, Mr Kenneally born (omitted) 1980, is and shall be the only person with ‘parental responsibility’ of the child, X born (omitted) 2002, for the purpose of applying for, and being issued with, an Australian Passport.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

All outstanding issues are removed from the list of matters awaiting hearing.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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Citations

AGLC Citation

KENNEALLY & KENNEALLY & ALLEN [2012] FMCAfam 921

Most Recent Citation

HICKS & HICKS & ANOR [2013] FCCA 495

Cases citing this decision · 2 of 2 shown

Yarnall
[2021] FCCA 241 Para 5

…ions about the Court’s jurisdiction. He has done so. In particular, I have been provided with two cases of relevance. Kenneally & Kenneally & Allen [2012] FMCAfam 921, a decision of then Federal Magistrate Harman, dealt with the authorities concerning whether or not the Court is able to make a parenting order in circ…
Hicks and Hicks and Anor
[2013] FCCA 495 Para 2

…Harman FM, as his Honour then was, also dealt with a similar situation in Kenneally & Kenneally & Anor (2012) 269 FLR 171; [2012] FMCAfam 921. In that case, the proceedings were brought by the uncle of a nine year old girl. Her parents, and many other people, died when their boat sank off Christmas Island on 15 Decem…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

Nayak
[2011] FamCA 491 Para 29

…The Legal Representative for the Applicant has provided to the Court this morning a decision of Cronin J in Nayak [2011] FamCA 491 which similarly, and in circumstances analogous to these, proceeded with an Application for parenting orders by a relative of a children in circumstances whereby both parents were decea…
Re: Jamie (Special Medical Procedure)
[2011] FamCA 248 Para 18

…at this case, together with decisions of Dessau J in Re Rosie (Special Medical Procedure) [2011] FamCA 63 and Re: Jamie (Special medical procedure) [2011] FamCA 248, Young J in Re: Baby D (No. 2) (2011) 54 Fam LR 313, and Collier J in Re: Bernadette [2010] FamCA 94, all accepted that jurisdiction was vested in the…
Re: Rosie (Special Medical Procedure)
[2011] FamCA 63 Para 18

…special medical procedures. It is to be noted, however, that this case, together with decisions of Dessau J in Re Rosie (Special Medical Procedure) [2011] FamCA 63 and Re: Jamie (Special medical procedure) [2011] FamCA 248, Young J in Re: Baby D (No. 2) (2011) 54 Fam LR 313, and Collier J in Re: Bernadette [2010]…
Re: Bernadette (Special Medical Procedure)
[2010] FamCA 94 Para 18

…63 and Re: Jamie (Special medical procedure) [2011] FamCA 248, Young J in Re: Baby D (No. 2) (2011) 54 Fam LR 313, and Collier J in Re: Bernadette [2010] FamCA 94, all accepted that jurisdiction was vested in the Court without a Respondent by virtue of the parens patriae jurisdiction and the provisions of section…
F and D
[2005] FMCAfam 178 Para 22

…here have been a number of instances wherein decisions have been made by judicial officers absent any named or clearly identified Respondent. In F& D [2005] FMCAfam 178, Emmett FM had proceeded to deal with an Application made jointly by the father of a child and his de facto partner and in circumstances where the ch…
Re J and M: Residence Application
[2004] FMCAfam 656 Para 26

…Similarly, Walters FM in Re Jessie & Matthew: Residence application [2004] FMCAfam 656 had dealt with a residence application in which there were two Applicants but no Respondent. That case had arisen in circumstances whereby an unknown (anonymous) person had donated the biological material which had aided conception…
Minister for Immigration and Multicultural and Indigenous Affairs v B
[2004] HCA 20 Para 30

…es from the High Court’s decisions in AIF v AMS [1999] HCA 26 and Minister for Immigration and Multicultural and Indigenous Affairs v B and Another (2004) 219 CLR 365.…
Re Mark: An Application Relating to Parental Responsibilities
[2003] FamCA 822 Para 21

…s also provide some support and assistance and in particular the decision of Brown J in Re Mark: an application relating to parental responsibilities [2003] FamCA 822. However, in that case it was made clear by her Honour that whilst the surrogate parents of the child were the Applicants the surrogate and birth mot…
AMS v AIF
[1999] HCA 26 Para 30

…e beginning of the valid assumption and exercise of jurisdiction in circumstances such as these arises from the High Court’s decisions in AIF v AMS [1999] HCA 26 and Minister for Immigration and Multicultural and Indigenous Affairs v B and Another (2004) 219 CLR 365.…
R v Davison
[1954] HCA 46 Para 32

…he above authorities referred to the High Court’s decision and particularly that of the majority comprising Dixon CJ and McTiernan J in R v Davison (1954) 90 CLR 353. Whilst that decision is well before the commencement of the Family Law Act and dealt with circumstances entirely different (dealing in fact with estab…
Queen Victoria Memorial Hospital v Thornton
[1953] HCA 11

…s [1902] USSC 164 Prentis v. Atlantic Coast Line Co . [1908] USSC 154 Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144…
Shell Co of Australia Ltd v Federal Commissioner of Taxation
[1949] HCA 29 Para 1

…Their Honours went on to discuss the Privy Council’s decision in Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530 as well as the authorities already referred to above. Their Honours then turned to Blackstone’s definition of judicial authority in the following terms: In every Court ther…
Huddart, Parker & Co Pty Ltd v Moorehead
[1909] HCA 36 Para 33

…In that decision their Honours referred to the discussion of Griffith CJ in earlier authorities such as Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908) 8 CLR 330 as well as a discussion of that decision and adoption of same in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134. In…
YYYYY & YYYYY
[2000] FAMCA 1711 Para 17

…In YYYYY & YYYYY [2000] FamCA 1711 a decision of Hannon J as anonymised, an Application had been brought by the parents of a child within the Court’s parens patriae jurisdiction. That decision followed shortly after the matter of P and P (1995) FLC 92-615. His Honour, in YYYYY , was not troubled by and did not raise…
Parker & Co Pty Ltd v Moorehead
292 US 313 Para 33

…In that decision their Honours referred to the discussion of Griffith CJ in earlier authorities such as Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908) 8 CLR 330 as well as a discussion of that decision and adoption of same in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (…
[1986] AC 112
[1986] AC 112 Para 18

…and Community Services v JWB & SMB (1992) FLC 92-293. His Honour thereafter turned to the Competency Test established in Gillick v West Norfolk AHA [1986] AC 112 as well as a number of other decisions dealing with special medical procedures. It is to be noted, however, that this case, together with decisions of…
Labour Relations Board of Saskatchewan v John East Iron Works Ltd
(1949) AC 134 Para 33

…(1908) 8 CLR 330 as well as a discussion of that decision and adoption of same in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134. In Huddart Griffith CJ he had opined: I am of opinion that the words 'judicial power' as used in s. 71 of the Constitution mean the power which ever…

Legislation cited in this decision · 5

Family Law Act 1975 (Cth)
4, 60B, 60CC, 60H, 61DA, 64B, 64C, 65C,... 14 mentions
Guardianship Act 1987 (NSW)
71, 9 5 mentions (from Para 3)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
8, 9 3 mentions (from Para 4)
Judiciary Act 1903 (Cth)
2 2 mentions (from Para 9)
Acts Interpretation Act 1901 (Cth)
15AB 1 mention