Musgrove & Panshin - [2014] FCCA 1680

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSGROVE & PANSHIN

[2014] FCCA 1680

Catchwords:
FAMILY LAW – Children – parenting orders – application for parenting orders – where applicant is not a biological parent of the child – jurisdiction – where respondent seeks dismissal of Application – allegations of family violence by applicant – need for child’s interests to be independently represented – appointment of Independent Children’s Lawyer.

PRACTICE AND PROCEDURE – Jurisdiction – whether applicant is a person concerned with the care, welfare or development of the child – breakdown of same-sex relationship – threshold test – 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.60CA, 60CC, 60CD, 64C, 65C, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Harris & Calvert [2013] FCCA 955
Re J & M: Residence Application [2004] FMCAfam 656; (2005) 32 Fam LR 1352
KAM & MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
Re K (1994) 17 Fam LR 537; FLC 92-461
Laurita & Anor & Morda [2012] FMCAfam 1439
R & M [2012] FMCAfam 279
Tran & Ngo [2012] FMCAfam 1352

Applicant:

MS MUSGROVE

Respondent:

MS PANSHIN

File Number:

SYC 2651 of 2014

Judgment of:

Judge Scarlett

Hearing date:

23 July 2014

Date of Last Submission:

23 July 2014

Delivered at:

Sydney

Delivered on:

31 July 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Baltins

Solicitors for the Applicant:

Legal Aid NSW

The Respondent:

In person

ORDERS

It is declared that the Applicant is a person concerned with the care, welfare or development of the Child [X] born [omitted] 2002.
The Applicant and the Respondent are to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975 at a time and place to be fixed and such conference is to be reportable under s.11C of the Act.
In accordance with s.68L of the Family Law Act 1975, the interests of the child [X] born [omitted] 2002 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within fourteen (14) days from the date of this Order the parties must forward to Legal Aid New South Wales 323 Castlereagh Street Sydney for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and all other relevant documents.
The Independent Children’s Lawyer, when appointed, has leave to issue up to ten (10) subpoenas without charge.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2651 of 2014

MS MUSGROVE

Applicant

And

MS PANSHIN

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for parenting orders in respect of a girl named…

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 Musgrove & Panshin

Details

AGLC: Musgrove and Panshin [2014] FCCA 1680
Case: [2014] FCCA 1680
Decision Date: 31 July 2014

CaseChat Overview and Summary

In the matter of Musgrove & Panshin, heard before Judge Scarlett, the applicant sought parenting orders concerning a child. The respondent sought the dismissal of the application, raising allegations of family violence by the applicant and questioning the applicant's standing to bring the application.

The central legal issues before the court were whether the applicant, who was not a biological parent, was a "person concerned with the care, welfare or development of the child" for the purposes of the *Family Law Act 1975*, and consequently, whether the court had jurisdiction to hear the application for parenting orders. The court also considered the need for the child's interests to be independently represented.

Judge Scarlett determined that the applicant had made out a prima facie case that she had standing to bring the application, thereby satisfying the threshold test for jurisdiction. The court applied the principles governing standing under the *Family Law Act 1975*, finding that the applicant's relationship and involvement with the child met the criteria of being a person concerned with the child's care, welfare, or development.

The court declared that the applicant was a person concerned with the care, welfare, or development of the child. It ordered the parties to attend a Child Dispute Conference with a Family Consultant and, pursuant to s 68L of the *Family Law Act 1975*, ordered that the child's interests be independently represented by a lawyer, requesting Legal Aid New South Wales to arrange such representation. The parties were directed to forward all relevant documents to Legal Aid New South Wales for the appointed Independent Children’s Lawyer, who was granted leave to issue subpoenas without charge.

Orders

Orders of the court

It is declared that the Applicant is a person concerned with the care, welfare or development of the Child [X] born [omitted] 2002.

The Applicant and the Respondent are to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975 at a time and place to be fixed and such conference is to be reportable under s.11C of the Act.

In accordance with s.68L of the Family Law Act 1975, the interests of the child [X] born [omitted] 2002 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange such representation.

Within fourteen (14) days from the date of this Order the parties must forward to Legal Aid New South Wales 323 Castlereagh Street Sydney for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and all other relevant documents.

The Independent Children’s Lawyer, when appointed, has leave to issue up to ten (10) subpoenas without charge.

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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