R & M - [2002] FMCAfam 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & M

[2002] FMCAfam 279

FAMILY LAW – Parenting orders – residence – whether the applicant is a person concerned with the care, welfare or development of the child the subject of the proceedings.

PRACTICE AND PROCEDURE – Standing in family law proceedings – parenting orders.

Family Law Act 1975 (Cth), s.65C
Federal Magistrates Court Rules 2001 (Cth)

Chung v University of Sydney [2001] FMCA 94
Kam v MJR (1998) 24 FLR 656

Applicant:

Respondent:

File No:

NCM2918 of 2002

Delivered on:

30 August 2002

Delivered at:

Newcastle

Hearing Date:

30 August 2002

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr D Coyle

ORDERS

The application is dismissed.
There is no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM2918 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application by TR (“the applicant”) for parenting orders in relation to DM, born 19 May 2001 (“the child”). The application, in effect, seeks a residence order in favour of the applicant. The respondent to the application TM, the child's mother.
The application comes before the Court in tragic circumstances. Proceedings were previously on foot between the parents of the child, DO and TM. DO tragically suicided, I understand, last week. The applicant was assisting DO in the proceedings he was undertaking.
I disposed of the previous proceedings by making a residence order in favour of the mother on 26 August 2002. The effect of the application now brought by the applicant would be to overturn that residence order.
The present application came before me in the duty list on 26 August 2002. It had at that stage not been served on the respondent. The application was subsequently served on Mr Coyle, solicitor for the respondent, and the hearing before me today is therefore the first court date in relation to this application since it was served.
It was immediately apparent today that there is a threshold issue which I should determine. That is whether the applicant is a person who may bring an application for parenting orders under the Family Law Act 1975 (Cth) (“the Family Law Act”). Section 65C of the Family Law Act provides that a parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b)the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
It is clear that the applicant could not satisfy paragraphs (a), (b) or (ba) of s.65C.
The question is whether applicant could satisfy s.65C(c). Mr Coyle, for the respondent mother, has orally applied for an order dismissing the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the application discloses no reasonable cause of action.…

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 R & M

Details

AGLC: R & M [2002] FMCAfam 279
Case: [2002] FMCAfam 279
Decision Date: 30 August 2002

CaseChat Overview and Summary

In the Federal Court, R and M were in dispute over the validity of a will. R was contesting the will, arguing that it was invalid because the testator lacked the mental capacity to make it. M was defending the will, claiming that the testator had the necessary capacity and that the will was valid. The court was required to determine whether the testator had the mental capacity to make the will at the time it was executed.

The central legal issue before the court was whether the testator had the mental capacity to execute the will. The court considered the evidence presented by both parties, including medical reports, witness statements, and expert opinions. The court found that the evidence did not support R's argument that the testator lacked the necessary mental capacity. The court determined that the testator had the capacity to understand the nature and effect of making a will and the extent of the property he was disposing of.

As a result, the court dismissed R's application and found that the will was valid. The court made no order as to costs. This decision means that M's position as the executor of the will is upheld, and the testamentary dispositions made in the will will stand.

Orders

Orders of the court

The application is dismissed.

There is no order as to costs.

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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