FAMILY COURT OF AUSTRALIA
| VALENTINE & LACERRA AND ANOR | [2013] FamCAFC 53 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility and best interests of a child – where the Federal Magistrate made orders for the father to have sole parental responsibility and for the child to live with the father and spend time with her maternal aunt and grandmother – where the father argued on appeal that a natural parent with sole parental responsibility must have primacy when the Court is considering making other parenting orders – where the Full Court found there are no presumptions or preferential positions that apply as between parent and non-parent, and that an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely according to its own facts and having regard to the bests interests of the child as a paramount consideration – where the Federal Magistrate was well aware the father was the sole surviving parent and that the respondents were non-parents and no fault was found with how his Honour approached the decision making process – no merit found in this ground of appeal. FAMILY LAW – APPEAL – CHILDREN – Overseas travel – where the Federal Magistrate refused to make the order sought by the father pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) and instead made orders restraining all parties from taking the child outside of Australia and requesting that the child’s name be placed on the Airport Watch List/PACE Alert system – where the father argued on appeal that the Federal Magistrate erred by finding the father’s proposed order would entail the “delegation of judicial power to a party or non-judicial officer” and that the Federal Magistrate failed to address the evidence and make factual findings as to what orders should be made in the best interests of the child – merit found in this ground of appeal – the issue of orders to be made in respect of overseas travel remitted to the Federal Magistrates Court for rehearing. |
| Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC(2)-(3), 61B, 61C(2), 61D(2), 61DA, 61DAC, 65C(ba)-(c), 65D, 65Y, 68B Federal Proceedings (Costs) Act 1981 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 Cales & Cales (2010) FLC 93-459 Church & S Overton (2008) 40 Fam LR 357 Malcolm & Monroe (2011) FLC 93-460 Mulvany & Lane (2009) FLC 93-404 Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219 |
| APPELLANT: | Mr Valentine |
| FIRST RESPONDENT: | Ms Lacerra |
| SECOND RESPONDENT: | Ms Dalley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 2473 | of | 2011 |
| APPEAL NUMBER: | EA | 60 | of | 2012 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Coleman & Strickland JJ |
| HEARING DATE: | 6 December 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 2 April 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 414 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Harper SC |
| COUNSEL FOR THE… |
Keep reading for free
Create a free CaseChat account to read Valentine & Lacerra and Anor and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] FamCAFC 53
- Decision Date
CaseChat Overview and Summary
The court examined two primary legal issues: first, whether the Federal Magistrate erred in not giving primacy to the father's parental responsibility when considering other parenting orders, and second, if the Federal Magistrate's refusal to grant the father's application for overseas travel orders was justified. The court found that there is no presumption or preferential position for parents over non-parents in parenting order applications. Regarding the overseas travel, the court determined that the Federal Magistrate had misapplied the law by considering the delegation of judicial power and had failed to address the evidence adequately to make findings in the child's best interests.
The appeal was partially allowed by the Full Court. The orders concerning parental responsibility were upheld, as the court found no error in the Federal Magistrate's approach. However, the court found merit in the father's argument regarding the overseas travel orders. The issue of orders relating to overseas travel was remitted to the Federal Magistrates Court for rehearing by a different Federal Magistrate. The court also granted costs certificates to the parties involved, with provisions for potential costs for the Independent Children's Lawyer if they pursued further costs applications.
Orders
Orders of the court
1.
The appeal be allowed in part.
2.
Orders 14, 15 and 16 made by Federal Magistrate Harman on 2 April 2012 be set aside.
3.
The application by the appellant father for orders pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) and the applications for an injunction restraining the appellant father and the respondents from removing the child X from Australia, requesting the Marshall of the Federal Magistrates Court and all officers of the Australian Federal Police and of the Police forces of the States and Territories of Australia to give effect to any injunction and to take all necessary steps to restrain either party from removing the said child from Australia, and requesting the Commissioner of the Australian Federal Police to place the said child’s name on the Airport Watch List, also known as the PACE Alert System, be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Harman.
4.
The court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
5.
The court grants to the respondents a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondents in respect of the costs incurred by them in relation to the appeal.
6.
The court grants to each of the appellant father and the respondents a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant father and the respondents in respect of such part as the Attorney-General considers appropriate of any costs incurred by each of those parties in relation to the new trial.
7.
In the event that the Independent Children’s Lawyer seeks to pursue an application for costs certificates pursuant to the provisions of sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), within twenty-one (21) days of the date of these orders the Independent Children’s Lawyer file written submissions in support of such application and serve the same upon the other parties.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.