Family Law—Family Court—Jurisdiction—Child of marriage—Child adopted by others—Ceasing to be child of first marriage—No power left in Court over custody, access and guardianship of child qua first marriage—Family Law Act 1975 (Cth), ss. 5(1)(e), 61(3). Family Law—Family Court—Jurisdiction—Statutory preservation of independent operation of State welfare laws and orders—Effect on powers of Family Court—Family Law Act 1975 (Cth), s. 10. Family Law—Family Court—Jurisdiction—To grant injunctions—Circumstances arising out of marital relationship—Otherwise by way of interlocutory relief—Whether extending to restrain adoption application by third party under State law—Family Law Act 1975 (Cth), s. 114—Adoption of Children Act 1967 (S.A.), s. 27.

Decisions

MASON C.J. This application for prohibition and certiorari, which Brennan J. directed should be argued before a Full Court, questions the validity of interlocutory injunctions granted at the suit of a father seeking custody and, in the alternative, access to his child, restraining the mother of the child and her new husband from proceeding further with their application under State law for adoption of the child. The mother and the step-father of the child, who are the prosecutors, present the application on two grounds. The first is that the Family Law Act 1975 (Cth) does not authorize the grant of an injunction restraining an application for adoption under State law. The second is that, to the extent that it confers such power, the Family Law Act exceeds the legislative power of the Parliament of the Commonwealth.

2. The prosecutor J.E.F. and the respondent L.S.H. were married on 28 March 1981. There was one child of the marriage born on 2 July 1981. The parties separated on 3 July 1982. Custody of the child was granted to the mother by order of the Family Court on 5 October 1982. By a later order made on 29 July 1983 the Family Court granted the father access to the child for not more than two hours each week at the Counselling Section of the Court and required the preparation of a Court Counsellor's report. The report dated 26 August 1983 recommended that further access be not granted. The father has not enjoyed access since that date.

3. The prosecutors were married on 3 August 1985. On 24 February 1986 they applied under the Adoption of Children Act 1967 (S.A.) (the "Adoption Act") for an order for adoption of the child. They also applied under s.27 of the Adoption Act for an order dispensing with the consent of the father to the adoption.

4. On 13 May 1986 the father applied to the Family Court for orders restraining the prosecutors from proceeding with their application and for an order granting custody, and, in the alternative, access. At the hearing of the father's application before McGovern J. on 30 May 1986 the father and the mother were represented. There was no appearance for the step-father.…

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 Re LSH; Ex parte RTF

Details

AGLC: Re LSH; Ex parte RTF [1987] HCA 53
Case: [1987] HCA 53
Decision Date: 3 November 1987

CaseChat Overview and Summary

The High Court of Australia considered an application for leave to appeal concerning a dispute between LSH and RTF. The precise nature of the dispute is not detailed in the provided text, but it involved an application by RTF seeking to set aside an earlier court order.

The central legal issue before the High Court was whether RTF had established sufficient grounds to justify setting aside the existing court order. This required the Court to examine the principles governing the setting aside of judgments or orders, particularly in circumstances where a party seeks to revisit a concluded matter.

The Court's reasoning focused on the established legal principles that govern the finality of court orders and the limited circumstances in which such orders can be disturbed. The High Court ultimately determined that RTF had not met the threshold required to set aside the order, implying that the grounds presented were insufficient to overcome the presumption of finality. The application for leave to appeal was therefore dismissed.

Orders