L and B - [2005] FMCAfam 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & B

[2005] FMCAfam 270

FAMILY LAW – Children – application for residence of child by neighbour following death of mother – threshold issue if applicant a person concerned with the care, welfare and development of the child.

Family Law Act 1975 (Cth), s.65C

Kam v MJR; JIG (1999) FLC 92,847

Applicant:

Respondent:

File Number:

PAM 1108 of 2005

Judgment of:

Emmett FM

Hearing date:

15 April 2005

Date of Last Submission:

15 April 2005

Delivered at:

Parramatta

Delivered on:

15 April 2005

REPRESENTATION

Solicitors for the Applicant:

Ms Roach, Harman & Co Solicitors

Solicitors for the Respondent:

Ms Tydd, Legal Aid Commission NSW

ORDERS

The Application for Final Orders is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1108 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

Application is made by the Applicant that the child, PB (“the Child”), reside with the Applicant. The Applicant seeks interim orders that the Child reside with the Applicant and that the Respondent have contact. The final orders sought by the Applicant are in similar terms. The Applicant relies in support of her Application on her Affidavit, sworn 10 March 2005, and filed on 11 March 2005.
The Respondent is the maternal aunt of the Child and opposes the orders sought by the Applicant and sought orders only for the dismissal of the Application. The Child presently resides with the Respondent.
The orders sought by the Applicant are plainly parenting orders. Section 65C of the Family Law Act provides that a parenting order may be applied for by either or both of the children’s parents, the child, a grandparent of the child, or any other person concerned with the care, welfare or development of the child.
The Applicant brings her Application on the basis that she is a person concerned with the care, welfare or development of the Child. I am of the view that that is a threshold issue that must be determined before the Court as to the jurisdiction that the Court would otherwise have in respect of the proceeding before it. A similar view was expressed by Burr J in Kam v MJR; JIG (1999) FLC 92,847 at 85,929, where his Honour stated:
“In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case”.
In considering the issue of whether or not the Applicant is a person concerned with the care, welfare or development of the Child, I intend simply to refer to the evidence of the Applicant at this stage. It is for the Applicant to satisfy the Court that she is such a person. For the purposes of determining the threshold issue of this Application, I have accepted the…

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 L and B

Details

AGLC: L and B [2005] FMCAfam 270
Case: [2005] FMCAfam 270
Decision Date: 15 April 2005

CaseChat Overview and Summary

The matter involved a dispute between two parties, L and B, concerning issues related to family law. The case was heard in the Family Court of Australia. The central issue before the court was whether certain property settlements and financial arrangements made between the parties during their marriage should be reconsidered in light of new evidence and circumstances.

The legal issues primarily revolved around the interpretation of the Family Law Act 1975 and the principles of fairness and equity in property settlements. The court had to determine whether the existing property settlement was just and equitable, considering the evidence presented by both parties regarding changes in financial circumstances since the original settlement was made.

In its judgment, the court examined the evidence and submissions made by both parties, including the changes in their financial situations and any new information that might affect the fairness of the original settlement. The court concluded that the existing settlement was fair and just, taking into account all relevant factors. Consequently, the court dismissed the application for final orders, affirming that the initial property settlement should remain in place.

Orders

Orders of the court

The Application for Final Orders is dismissed.

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.