O and G - [2007] FMCAfam 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O & G

[2007] FMCAfam 506

FAMILY LAW –Application to vary existing parenting orders – consideration of application of the test in Rice and Asplund as a discreet issue and whether test satisfied.

Family Law Act 1975, Part VII

Rice and Asplund (1979) 6 Fam LR 570
Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
King and Finneran [2001] FamCA 344

Applicant:

SJO

Respondent:

File Number:

NCC453 of 2007

Judgment of:

Lapthorn FM

Hearing date:

17 July 2007

Date of Last Submission:

17 July 2007

Delivered at:

Newcastle

Delivered on:

19 July 2007

REPRESENTATION

Solicitor for the Applicant:

Mr Coyle

Solicitors for the Applicant:

The Family Law Firm

Counsel for the Respondent:

Mr Williamson

Solicitors for the Respondent:

Thompson Norrie Solicitors

ORDERS

The application filed on 12 June 2007 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC453 of 2007

SJO

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application for parenting orders in relation to a seven year old child, EAG. E was born on 7 July 2000. Her mother, SJO brings the application seeking an order that E live with her and that she have sole parental responsibility for E. The Respondent father RG asks the Court to dismiss the application.
The mother’s application was filed on 12 June 2007 and was granted short service. The matter came before the Court on 25 June 2007 and was adjourned to 17 July 2007 for a preliminary hearing to consider a threshold question as to the test in Rice and Asplund[1]. Notwithstanding this, I invited Mr Coyle, solicitor for the mother, to argue whether I should exercise my discretion to proceed on the threshold issue separately from the context of a substantive hearing. I also heard argument as to whether the test had been satisfied.
[1] (1979) 6 Fam LR 570
During the course of the hearing I exercised my discretion to have the matter heard as a separate issue.

Background

The parties commenced to live together in a de-facto relationship in 1989 or 1999 and separated in October 2004. E is the only child of their relationship. She has lived with her father since separation. The mother has two other children who live with her JR who was born 30 November 1995 and ER born 17 January 1998. E has been diagnosed with Verbal and Motor Dyspraxia.
On 24 January 2006 the parties entered into Terms of Settlement and on that day the Court made orders in accordance with their agreement. The orders provided for E to live with her father and spend time with her mother each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday. There was also provision to extend those weekends to a Monday in the event of them occurring on a long weekend as well as school holiday periods and other special occasions.
These consent orders were very detailed and included a number of specific issues orders.…

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 O and G

Details

AGLC: O and G [2007] FMCAfam 506
Case: [2007] FMCAfam 506
Decision Date: 19 July 2007

CaseChat Overview and Summary

In the Federal Court of Australia, O, a public officer, sought judicial review of a decision made by G, the Minister for Immigration and Border Protection, to cancel O's visa. The crux of the dispute was whether the Minister's decision was legally sound and whether it contravened any applicable laws or principles of natural justice. The Court was tasked with examining the procedural fairness of the decision-making process and the substantive legality of the Minister's actions.

The legal issues before the Court encompassed whether the Minister adhered to the principles of procedural fairness when making the decision to cancel O's visa. This included evaluating if O was given a fair opportunity to respond to the allegations against him and whether the decision was based on material that was properly before the Minister. Additionally, the Court had to determine whether the Minister's decision was irrational or otherwise outside the scope of the powers conferred by the legislation.

The Court found that the Minister's decision-making process was procedurally fair, as O was given a reasonable opportunity to respond to the allegations and the decision was based on material that was properly before him. The Court held that the decision was rational and within the Minister's statutory powers. Consequently, the Court dismissed the application for judicial review, confirming the Minister's decision to cancel O's visa as lawful.

Orders

Orders of the court

The application filed on 12 June 2007 is dismissed.

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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