Suttikul & Anor and Suttikul & Ors - [2017] FamCA 70

FAMILY COURT OF AUSTRALIA

SUTTIKUL AND ANOR & SUTTIKUL AND ORS

[2017] FamCA 70

FAMILY LAW – ADOPTION – Jurisdiction of the Family Court of Australia – Emphasised that s 60G of the Family Law Act 1975 (Cth) only empowers the Court to grant leave to applicants to commence adoption proceedings in the proper forum – Where there are adoption proceedings on foot in the Supreme Court of NSW – Decided this Court has no power, absent some underlying justiciable issue, to make declarations that are binding on and enforceable in other superior courts of record – Where there is no issue to be decided under the Family Law Act – Order that the application is dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of Process – Where the declarations sought by the applicants would render nugatory the pending hearing before the Supreme Court of NSW – Concluded the application was designed to outflank the immigration dispute pending before the Administrative Appeals Tribunal and the adoption proceedings pending before the Supreme Court of NSW – Order that the application is dismissed

Adoption Act 2000 (NSW)

Family Law Act 1975 (Cth), ss 60G, 69ZK

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), regs 24A, 25

Donnell & Dovey (2010) 237 FLR 53

APPLICANTS:

Ms Suttikul & Mr Hillebrandt

RESPONDENTS:

Ms Suttikul & Mr Suttikul

FIRST INTERVENER:

Attorney-General of the Commonwealth

SECOND INTERVENER:

Secretary of the NSW Department of Family and Community Services

FILE NUMBER:

NCC

2234

2014

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:	Newcastle
PLACE HEARD:	Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE FIRST INTERVENER:

Ms Hager via telephone

SOLICITOR FOR THE FIRST INTERVENER:	Australian Government Solicitor
COUNSEL FOR THE SECOND INTERVENER:	Mr Boyd

SOLICITOR FOR THE SECOND INTERVENER:

Crown Solicitor’s Office

Orders

IT IS ORDERED THAT

Leave is granted to the Secretary of the NSW Department of Family and Community Services to intervene in the proceedings (henceforth to be referred to as the Second Intervener).

The Initiating Application filed on 23 December 2016 is dismissed.

No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suttikul & Anor & Suttikul 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 NEWCASTLE

FILE NUMBER: NCC 2234 of 2014

Ms Suttikul & Mr Hillebrandt

Applicants

And

Ms Suttikul & Mr Suttikul

Respondents

And

Attorney-General of the Commonwealth
First Intervener

And

NSW Department of Family and Community Services
Second Intervener

Ex tempore

REASONS FOR JUDGMENT

The applicants in these proceedings are a married couple. They are Australians.
In March 2016, they instituted proceedings in the Supreme Court of NSW to adopt the wife’s niece. She is a Country B national, but has lived 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.

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Details

Case: [2017] FamCA 70
Decision Date: 3 February 2017

CaseChat Overview and Summary

The proceedings before Austin J in the Supreme Court of New South Wales involved a dispute between the parties identified as Suttikul & Anor and Suttikul & Ors. The Secretary of the NSW Department of Family and Community Services sought and was granted leave to intervene in these proceedings. The core of the dispute, as evidenced by the dismissal of the Initiating Application filed on 23 December 2016, concerned matters that were ultimately resolved by the court's orders.

The primary legal issue before the court was whether the Initiating Application, filed by the applicants on 23 December 2016, should be dismissed. This determination would have significant implications for the parties involved and the resolution of their underlying dispute. The court was also required to consider the appropriate orders regarding costs.

Austin J ordered that leave be granted to the Secretary of the NSW Department of Family and Community Services to intervene. Crucially, the court then dismissed the Initiating Application filed on 23 December 2016. No order was made as to costs.

Orders

Orders of the court

IT IS ORDERED THAT

Leave is granted to the Secretary of the NSW Department of Family and Community Services to intervene in the proceedings (henceforth to be referred to as the Second Intervener).

The Initiating Application filed on 23 December 2016 is dismissed.

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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