FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Telito & Glass [2024] FedCFamC2F 501
File number(s): SYC 955 of 2024 Judgment of: JUDGE MURDOCH Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PARENTING –– Application for Review – Where the child is not yet three years of age - Where the applicants in the substantive proceedings are the aunt and uncle of the respondent mother – Where the aunt and uncle have been the primary carer of the child since his birth and assert they adopted the child pursuant to a Country B custom – Where the respondent parents assert they were coerced into participating in such custom – Where the mother unilaterally retained the child in January 2024 – Where orders were made by a Senior Judicial Registrar for the child to be returned to the aunt and uncle – Where the mother seeks to review such orders –Where the parents unilaterally changed the child’s name – The Application for Review of Orders that the child remain with the aunt and uncle is dismissed and Orders made restraining the parties from calling the child by his new legal name. Legislation: Family Law Act1975(Cth) ss VII, 60B, 60B(2), 60B(2)(e), 60CA, 60CC, 64C, 65C.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05.
Cases cited: Donnell & Dovey [2010] FamCAFC 15
Goode & Goode [2006] FamCA 1346
Re Evelyn [1998] FamCA 55
Salah & Salah [2016] FamCAFC 100
Souter & Meagher & Anor [2007] FamCA 18
SS & AH [2010] FamCAFC 13.
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 18 April 2024 Place: Sydney Counsel for the Applicant: Mr Moutasallem Solicitor for the Applicant: Pinnacle Lawyers Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Caldwell Martin & Cox ORDERS
SYC 955 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TELITO
First Applicant
MS TELITO
Second Applicant
AND: MS GLASS
First Respondent
MR GLASS
Second Respondent
INDEPENDENT CHILDRENS LAWYER
Intervener
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The parties are restrained by injunction from: -
(a)addressing or referring to the subject child of these proceedings X Glass also known as X Telito born in 2021 (“the child”) by any name other than X Telito; and
(b)allowing any other person to address or refer to the child other than as X Telito.
2.Any application for costs is to be made by way of an Application in a Proceeding together with any Affidavit and Financial Statement in support and is to be filed within 14 days of the date of these orders.
3.Any Response to such Application and an Affidavit in support including a Financial Statement is to be filed within 14 days thereafter.
4.Unless such Application or Response seeks an order that such determination occur via an oral hearing, any determination as to costs will proceed on the material filed and in…
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CaseChat Overview and Summary
The court had to determine whether the Telitos had standing to seek the review of the orders and whether the Glass family had valid grounds to contest the orders. The court also had to decide whether the Glass family's unilateral change of the child's name was appropriate. The Telitos argued that they had a close and significant relationship with the child, and that their care for the child was in his best interests. The Glass family argued that they were the child's legal parents and that the Telitos' adoption of the child was invalid. The court found that the Telitos had standing to apply for the review, as they had a significant relationship with the child and had been his primary carers. The court also found that the Glass family's opposition to the review was not well-founded, as they had not demonstrated that the Telitos' care for the child was not in his best interests. However, the court was concerned about the unilateral change of the child's name and found that it was not in the child's best interests. The court therefore dismissed the application for review but made orders restraining the parties from calling the child by his new legal name.
The court ordered that the child must be referred to as X Telito and restrained the parties from addressing or referring to the child by any other name. The court also noted that the Independent Children's Lawyer was not able to participate in the hearing of the review application due to being appointed late. The court ordered that any application for costs must be made within 14 days of the date of the orders, and that any response to such an application must be filed within 14 days thereafter. The court noted that, save as to the question of costs, the application for review was otherwise dismissed. The form of the order is subject to entry in the Court’s records, and the Reasons for judgment may be subject to review or variation.
Orders
Orders of the court
SYC 955 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TELITO
First Applicant
MS TELITO
Second Applicant
AND:
MS GLASS
First Respondent
MR GLASS
Second Respondent
INDEPENDENT CHILDRENS LAWYER
Intervener
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1. The parties are restrained by injunction from: -
(a) addressing or referring to the subject child of these proceedings X Glass also known as X Telito born in 2021 (“the child”) by any name other than X Telito; and
(b) allowing any other person to address or refer to the child other than as X Telito.
2. Any application for costs is to be made by way of an Application in a Proceeding together with any Affidavit and Financial Statement in support and is to be filed within 14 days of the date of these orders.
3. Any Response to such Application and an Affidavit in support including a Financial Statement is to be filed within 14 days thereafter.
4. Unless such Application or Response seeks an order that such determination occur via an oral hearing, any determination as to costs will proceed on the material filed and in Chambers.
5. Save as to the question of costs, the Application for Review filed on 4 April 2024 is otherwise dismissed.
THE COURT NOTES THAT:
A. The Independent Children’s Lawyer was appointed in the evening prior to the Application for Review and as such they were not in a position to participate in the hearing of the Application for Review.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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