Knightley & Brandon - [2013] FMCAfam 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KNIGHTLEY & BRANDON

[2013] FMCAfam 148

FAMILY LAW – Parenting – necessary requirements to proceed as undefended hearing – application of the presumption of equal shared parental responsibility – importance of culture in interpretation and application of legislation – discussion of the definition of “parent” – importance of violence in application of the legislation.

Family Law Act 1975 (Cth), ss.4, 4AB, 43(1)(b), 60B, 60CA, 60CC, 60H, 60HA, 60HB, 61DA, 64C, 65C, 65DAA(5), 69ZX(3)
International Convention on the Rights of the Child
Federal Magistrates Court Rules 2001 (Cth), rr.4.03, 4.05, 6.01, 6.06, 15.06
Federal Magistrates Act 1999 (Cth), ss.66 – 71,
Crimes (Administration of Sentences) Act 1999 (NSW), s.77
Births, Deaths and Marriages Registration Act 1995 (NSW)
Child Support (Assessment)Act 1989 (Cth), s.5
Same-Sex Relationships (Equal Treatment In Commonwealth Laws-General Law Reform Act) 2008 (Cth)

Social Security Act 1991 (Cth), ss.5, 197
Australian Citizenship Act 2007 (Cth), s.3
Migration Act 1958 (Cth), s.5CA
International Covenant on Economic, Social and Cultural Rights, Articles 10, 15
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Muir v The Queen [2004] HCA 21
Rice & Miller (1993) FLC 92-415
Mabo and Ors v Queensland (No 2) [1992] HCA 23 175
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451 199

Applicant:

MS KNIGHTLEY

Respondent:

MR BRANDON

File Number:

PAC 4023 of 2012

Judgment of:

Harman FM

Hearing date:

1 February 2013

Date of Last Submission:

1 February 2013

Delivered at:

Parramatta

Delivered on:

1 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr Basta

Solicitors for the Applicant:

Aston Reid Lawyers Pty Ltd

Respondent:

No Appearance

ORDERS ON A FINAL AND UNDEFENDED BASIS

The children, [X] born [in] 2009 and [Y] born [in] 2010, shall live with their maternal Aunt MS KNIGHTLEY.
Ms Knighley is to have sole parental responsibility for the children. [X] born [in] 2009 and [Y] born [in] 2010.
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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Knightley & Brandon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4023 of 2012

MS KNIGHTLEY

Applicant

And

MR BRANDON

Respondent

REASONS FOR JUDGMENT

These are proceedings involving an Application for parenting orders by a maternal aunt of two children, namely, [X] born [in] 2009 (and accordingly three years of age) and [Y] born [in] 2010 (and thus two years…

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 Knightley & Brandon

Details

AGLC: Knightley & Brandon [2013] FMCAfam 148
Case: [2013] FMCAfam 148
Decision Date

CaseChat Overview and Summary

- Parties, Dispute, and Court:
In the case of Knightley & Brandon, the Applicant, MS KNIGHTLEY, filed an Application for parenting orders concerning her two children, [X] born [in] 2009 and [Y] born [in] 2010. The Respondent, MR BRANDON, is the children's father. The matter was heard by the Federal Magistrates Court of Australia.

- Legal Issues:
The legal issues in this case include determining whether the presumption of equal shared parental responsibility applies to the parties, interpreting the definition of "parent," and assessing the impact of family violence on the allocation of parental responsibility. The court also had to consider the children's best interests and cultural needs.

- Court's Reasoning and Outcome:
The Federal Magistrates Court ruled that the presumption of equal shared parental responsibility did not apply due to the father's history of family violence and his incarceration. The court found that the mother's sister, Ms. Knightley, was the most suitable person to care for the children, given her established relationship with them and her cultural background. The court made orders granting sole parental responsibility to Ms. Knightley and requiring the children to live with her. The father's absence from the proceedings and his history of violence against the children's mother further supported the court's decision.

- Final Orders:
The final orders made by the court are that the children, [X] born [in] 2009 and [Y] born [in] 2010, shall live with their maternal Aunt MS KNIGHTLEY. Ms. Knightley is to have sole parental responsibility for the children. All outstanding Applications and Responses are withdrawn and dismissed, and all issues are removed from the list of matters awaiting hearing. The particulars of the obligations, consequences, and assistance available under the orders are set out in the attached Fact Sheet.

Orders