Tran & Ngo - [2012] FMCAfam 1352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN & NGO

[2012] FMCAfam 1352

FAMILY LAW – Children – parenting – orders – interim orders – best interests of the children – application by paternal Aunt for parenting orders – where children’s father deceased – where mother has left Australia and is residing in Vietnam – mental health issues – parental responsibility – best interests of the children.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 64B, 64C, 65C, 65DAA

Re J and M: Residence Application [2004] FMCAfam 656; (2005) 32 Fam LR 668
KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1998) FLC 92-847
R & M [2002] FMCAfam 279

Applicant:

MS TRAN

Respondent:

MS NGO

File Number:

SYC 6085 of 2012

Judgment of:

Scarlett FM

Hearing date:

3 December 2012

Date of Last Submission:

3 December 2012

Delivered at:

Sydney

Delivered on:

3 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Kennedy

Solicitors for the Applicant:

DT Legal Pty Ltd

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

No solicitor

ORDERS

UNTIL FURTHER ORDER

The Applicant is granted leave to proceed ex parte.
The children [X] born [in] 2004 and [Y] born [in] 2008 are to live with the Applicant Aunt.
The Applicant is to have parental responsibility to make decisions about any aspect of the care, welfare and development of the children [X] and [Y] including but not restricted to:
(a)Making decisions about enrolling the children in school and other aspects of the children’s education;
(b)Making decisions about the hospitalisation and other medical or dental treatment of the children; and
(c)All other aspects of parental responsibility for the children.
The Applicant and the Respondent are restrained from removing or causing or allowing the children [X] born [in] 2004 and [Y] born [in] 2008 to be removed from the Commonwealth of Australia SAVE AND EXCEPT that the Applicant is permitted to take the children from Australia to Vietnam for the purpose of a holiday between the date of this Order and 31 January 2013.
The Australian Federal Police are to place the names of the children [X] born [in] 2004 and [Y] born [in] 2008 on the Airport Watch List otherwise known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
The Applicant is to serve a sealed copy of these Orders on the Respondent by 3 January 2013;
The Application is adjourned to Monday 4 February 2013 at 10:00 am for mention only.

AND THE COURT NOTES that the Applicant advises that the Respondent was served in Vietnam only in the 24 hours immediately preceding the date the Application came before the Court.

IT IS NOTED that publication of this judgment under the pseudonym Tran & Ngo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6085 of 2012

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 Tran & Ngo

Details

AGLC: TRAN & NGO [2012] FMCAfam 1352
Case: [2012] FMCAfam 1352
Decision Date: 3 December 2012

CaseChat Overview and Summary

Tran & Ngo is a family law matter that was heard in the Family Court of Australia. The primary concern of the case was the care, welfare, and development of two children, [X] and [Y]. The dispute arose between the Applicant, who is an aunt, and the Respondent, who is the parent of the children. The Applicant sought to have the children placed in her care, citing concerns about the Respondent's ability to provide adequate care. The legal issues that the Court had to address included the determination of the best interests of the children, the allocation of parental responsibility, and the need for measures to prevent the children from being removed from Australia.

In reaching its decision, the Court considered the evidence presented by the Applicant and the Respondent. The Court found that the children's best interests were served by placing them in the care of the Applicant. It was determined that the Respondent was not capable of providing the necessary care for the children, both in terms of their physical welfare and their educational and medical needs. The Court granted the Applicant parental responsibility for the children, allowing her to make all decisions regarding their care, welfare, and development. Additionally, the Court implemented measures to prevent the children from being removed from Australia, such as placing their names on the Airport Watch List and restricting their travel outside the country.

The Court also granted the Applicant permission to take the children to Vietnam for a holiday within a specified period, recognising the importance of maintaining family connections despite the need for the children's protection. The final orders of the Court include granting the Applicant leave to proceed ex parte, placing the children in her care, and outlining the specific parental responsibilities she would assume. Furthermore, the Court restrained the Respondent from removing the children from Australia, except for the aforementioned holiday, and mandated that the children's names be added to the Airport Watch List. The Application was adjourned for further mention, and the Court noted that the Respondent was served with the application shortly before the hearing.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant is granted leave to proceed ex parte.

The children [X] born [in] 2004 and [Y] born [in] 2008 are to live with the Applicant Aunt.

The Applicant is to have parental responsibility to make decisions about any aspect of the care, welfare and development of the children [X] and [Y] including but not restricted to:

(a) Making decisions about enrolling the children in school and other aspects of the children’s education;

(b) Making decisions about the hospitalisation and other medical or dental treatment of the children; and

The Applicant and the Respondent are restrained from removing or causing or allowing the children [X] born [in] 2004 and [Y] born [in] 2008 to be removed from the Commonwealth of Australia SAVE AND EXCEPT that the Applicant is permitted to take the children from Australia to Vietnam for the purpose of a holiday between the date of this Order and 31 January 2013.

The Australian Federal Police are to place the names of the children [X] born [in] 2004 and [Y] born [in] 2008 on the Airport Watch List otherwise known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.

The Applicant is to serve a sealed copy of these Orders on the Respondent by 3 January 2013;

The Application is adjourned to Monday 4 February 2013 at 10:00 am for mention only.

AND THE COURT NOTES that the Applicant advises that the Respondent was served in Vietnam only in the 24 hours immediately preceding the date the Application came before the Court.

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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