Norrie & Norrie & Anor - [2015] FCCA 311

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORRIE & NORRIE & ANOR

[2015] FCCA 311

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – sole parental responsibility – best interests of the child – application by adult sister for parenting orders in respect of her younger brother – child aged 14 years.

PRACTICE AND PROCEDURE – Jurisdiction – whether applicant is a person concerned with the care, welfare or development of the child – where father lives in Vietnam – where mother has not attended court – 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.60B, 60CA, 61DA, 64B, 64C, 65C

Cases cited:
KAM & MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
Musgrove & Panshin [2014] FCCA 1680
R & M [2002] FMCAfam 279
Tran & Ngo [2012] FMCAfam 1352

Applicant:

MS L NORRIE

First Respondent:

MS T NORRIE

Second Respondent:

MR THOM

File Number:

SYC 7073 of 2014

Judgment of:

Judge Scarlett

Hearing date:

9 February 2015

Date of Last Submission:

9 February 2015

Delivered at:

Sydney

Delivered on:

9 February 2015

REPRESENTATION

Solicitor for the Applicant:

Ms Ramjas

Solicitors for the Applicant:

Legal Aid NSW

First Respondent:

No appearance

Second Respondent:

No appearance

ORDERS

UNTIL FURTHER ORDER

Leave to proceed ex parte.
Service on the Second Respondent dispensed with.
It is declared that the Applicant is a person concerned with the care, welfare or development of the child [X] born [omitted] 2000.
The Applicant Ms Norrie is to have sole parental responsibility for the child [X] born [omitted] 2000, including all long-term matters as the child’s schooling, medical and dental decisions and where the child is to live.
The Respondent Mother is to file and serve a Response to the Application and an affidavit setting out the facts on which she relies within 28 days.
The Applicant is directed to forward a sealed copy of these Orders to the Respondent Mother by ordinary pre-paid post to the Mother’s last-known address within seven (7) days.
The Application is listed for an undefended hearing at 12:00 noon on Monday 6 July 2015. The Respondent Mother is advised that if she does not attend Court on the next occasion then Orders may be made in her absence.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7073 of 2014

MS L NORRIE

Applicant

And

MS T NORRIE

First Respondent

MR THOM

Second Respondent

REASONS FOR JUDGMENT

Application

This is an unusual Application, as it is brought by the adult sister of a boy called [X] who is 14 years old. [X] was born on [omitted] 2000. He is in fact the Applicant’s half-brother as they have the same mother. [X] lives with…

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 Norrie & Norrie & Anor

Details

AGLC: Norrie & Norrie & Anor [2015] FCCA 311
Case: [2015] FCCA 311
Decision Date: 9 February 2015

CaseChat Overview and Summary

In the matter of *Norrie & Norrie & Anor*, heard by Judge Scarlett, the applicant, an adult sister, sought parenting orders in respect of her 14-year-old brother. The dispute concerned interim parenting orders, specifically the question of parental responsibility, and whether the applicant had standing to bring such an application. The father of the child resided in Vietnam, and the mother had not attended court.

The primary legal issues before the court were whether the applicant was a "person concerned with the care, welfare or development of the child" for the purposes of the relevant legislation, thereby establishing jurisdiction to make parenting orders, and whether she had made out a prima facie case to proceed with her application. The court was also required to determine the interim parenting arrangements, including the question of sole parental responsibility.

Judge Scarlett reasoned that the applicant had satisfied the threshold test for standing, demonstrating a prima facie case that she was a person concerned with the child's care, welfare, and development. The court applied the principles of the best interests of the child in considering the interim orders. Consequently, the court granted the applicant leave to proceed ex parte, dispensed with service on the second respondent, and declared that the applicant was a person concerned with the child's care, welfare, and development.

The court ordered that the applicant, Ms Norrie, have sole parental responsibility for the child, encompassing long-term decisions regarding schooling, medical and dental care, and the child's residence, until further order. The Respondent Mother was directed to file and serve a response and affidavit within 28 days, and the applicant was to forward a copy of the orders to the mother's last-known address. The application was listed for an undefended hearing on 6 July 2015, with a warning to the Respondent Mother that orders could be made in her absence.

Orders

Orders of the court

UNTIL FURTHER ORDER

Leave to proceed ex parte.

Service on the Second Respondent dispensed with.

It is declared that the Applicant is a person concerned with the care, welfare or development of the child [X] born [omitted] 2000.

The Applicant Ms Norrie is to have sole parental responsibility for the child [X] born [omitted] 2000, including all long-term matters as the child’s schooling, medical and dental decisions and where the child is to live.

The Respondent Mother is to file and serve a Response to the Application and an affidavit setting out the facts on which she relies within 28 days.

The Applicant is directed to forward a sealed copy of these Orders to the Respondent Mother by ordinary pre-paid post to the Mother’s last-known address within seven (7) days.

The Application is listed for an undefended hearing at 12:00 noon on Monday 6 July 2015. The Respondent Mother is advised that if she does not attend Court on the next occasion then Orders may be made in her absence.

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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