Kyriakous (No. 2)

[2017] FamCA 1100

FAMILY COURT OF AUSTRALIA

KYRIAKOUS (NO. 2) [2017] FamCA 1100

FAMILY LAW – PRACTICE AND PROCEDURE – Application dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365

APPLICANT: Ms Kyriakous

FILE NUMBER: BRC 5247 of 2017

DATE DELIVERED: 22 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr A Comino, Stephen Comino & Arthur Comino Solicitors

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The Initiating Application filed 23 August 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kyriakous (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5247 of 2017

Ms Kyriakous

Applicant

REASONS FOR JUDGMENT

1. By Initiating Application filed 23 August 2017, the Applicant seeks a number of additional orders to those contained in the Initiating Application I dismissed on 14 July 2017.  She also renews her application for orders in the same terms as those contained in the previous application.

2. To the extent that they are relevant, I incorporate the Reasons I delivered on 14 July 2017.

3. I do not accept the thrust of Mr Comino’s submissions that the children’s entitlement to inherit arises from the fact that they are the children of the marriage between their parents (and that, therefore, there is sufficient connection with the marriage power to accord this Court jurisdiction to make the orders sought):  in fact, the contents of Article 757 of the French Civil Code to which Mr Comino referred seem to me to specify the entitlement of the Applicant (“the surviving spouse”).

4. In addition, I am not persuaded that there is here a “matter” to which the jurisdiction conferred by s 67ZC of the Family Law Act 1975 (Cth) can attach.[1]

   [1]Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365 per Gleeson CJ and McHugh J at 384.

5. I am not persuaded by the submissions made by Mr Comino in support of this renewed application that the evidence now before me establishes that this Court has jurisdiction to make the orders sought.

6. For these short reasons, I decline to make the orders sought and I dismiss the Initiating Application filed 23 August 2017.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 December 2017.

Associate:     

Date:              22 December 2017