RYAN & FRASER - [2014] FamCA 763

FAMILY COURT OF AUSTRALIA

RYAN & FRASER

[2014] FamCA 763

FAMILY LAW – CHILDREN – Where the parties were in a same sex de facto relationship and had a child through IVF – Where the Respondent in the substantive parenting proceedings seeks that the parenting proceedings be summarily dismissed on the grounds that the Court has no jurisdiction and/or that the Applicant in the substantive proceedings has no legal capacity to apply for the parenting orders – Whether the Applicant in the substantive proceedings is a “parent” as that term is referred to in Part VII of the Family Law Act 1975 in particular s 65C and s 60H – Whether the Applicant has a reasonable likelihood of success in the substantive parenting proceedings

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Groth & Banks [2013] FamCA 430

APPLICANT:

Ms Ryan

RESPONDENT:

Ms Fraser

FILE NUMBER:

BRC

2243

2014

DATE DELIVERED:

8 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

8 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Fotheringham of Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Browns Lawyers

Orders

It is ordered that:

The Respondent’s application for summary dismissal of the Applicant’s Initiating Application filed 12 March 2014 be dismissed.

It is further ordered that:

Within seven (7) days of the date of these Orders the Respondent provide to the Applicant the names of three (3) Family Consultants able to undertake the preparation of a Family Report in these proceedings and that within seven (7) days thereafter the Applicant nominate the person to undertake such Family Report and the Respondent shall forthwith upon receiving such nomination engage that expert to undertake the Family Report.

UNTIL FURTHER ORDER the costs of obtaining such Family Report be the responsibility of the Respondent in the first instance but that the question of such costs be reserved for further consideration.

The Respondent be given leave to provide to the nominated Family Consultant any filed documentation to assist in the preparation of the Family Report.

The parties shall attend and ensure the child attends all necessary appointments for the preparation of the Family Report.

The application for interim parenting orders (excluding order 6) contained in the Applicant’s Response to an Application in a Case filed 28 July 2014 be adjourned before the Registrar to a date to be fixed for the fixing of a fresh hearing date after receipt of the Family Report.

Each party bear their own costs of and incidental to today’s hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryan & Fraser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2243 of 2014

Ms Ryan

Applicant

And

Ms Fraser

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Ryan and Ms Fraser are engaged…

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 RYAN & FRASER

Details

AGLC: RYAN & FRASER [2014] FamCA 763
Case: [2014] FamCA 763
Decision Date: 8 September 2014

CaseChat Overview and Summary

In proceedings before Kent J, the applicant sought various orders, including the preparation of a Family Report and interim parenting orders. The respondent had applied for summary dismissal of the applicant's initiating application.

The court was required to determine whether to dismiss the respondent's application for summary dismissal, and if not, to make directions regarding the preparation of a Family Report and the adjournment of applications for interim parenting orders.

Kent J dismissed the respondent's application for summary dismissal. The court ordered that the respondent provide the applicant with the names of three Family Consultants within seven days, after which the applicant would nominate one to prepare a Family Report. The respondent was to engage the nominated consultant forthwith. The costs of the Family Report were to be borne by the respondent in the first instance, with the question of costs reserved. The respondent was granted leave to provide filed documentation to the consultant, and both parties were ordered to ensure the child attended all necessary appointments for the report. The application for interim parenting orders was adjourned before the Registrar for a fresh hearing date to be fixed after receipt of the Family Report. Each party was to bear their own costs of the hearing.

Orders

Orders of the court

It is ordered that:

The Respondent’s application for summary dismissal of the Applicant’s Initiating Application filed 12 March 2014 be dismissed.

It is further ordered that:

Within seven (7) days of the date of these Orders the Respondent provide to the Applicant the names of three (3) Family Consultants able to undertake the preparation of a Family Report in these proceedings and that within seven (7) days thereafter the Applicant nominate the person to undertake such Family Report and the Respondent shall forthwith upon receiving such nomination engage that expert to undertake the Family Report.

UNTIL FURTHER ORDER the costs of obtaining such Family Report be the responsibility of the Respondent in the first instance but that the question of such costs be reserved for further consideration.

The Respondent be given leave to provide to the nominated Family Consultant any filed documentation to assist in the preparation of the Family Report.

The parties shall attend and ensure the child attends all necessary appointments for the preparation of the Family Report.

The application for interim parenting orders (excluding order 6) contained in the Applicant’s Response to an Application in a Case filed 28 July 2014 be adjourned before the Registrar to a date to be fixed for the fixing of a fresh hearing date after receipt of the Family Report.

Each party bear their own costs of and incidental to today’s hearing.

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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