Venkatesan & Pawar - [2007] FMCAfam 1109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VENKATESAN & PAWAR

[2007] FMCAfam 1109

FAMILY LAW – Parenting order – application by maternal aunt and uncle – standing to apply – whether in best interests – costs.

Family Law Act 1975, ss. 60B, 60CC, 65C, 117

C v G [2006] FamCA 994
Kam v MJR [1998] 24 Fam LR 656; FLC 92-847
J and M: Residence Application [2004] 32 FamLR 668; FMCAfam 656

Applicant:

MR & MS VENKATESAN

Respondent:

MR PAWAR

File number:

PAC 6290 of 2007

Judgment of:

Altobelli FM

Hearing date:

7 December 2007

Date of last submission:

7 December 2007

Delivered at:

Parramatta

Delivered on:

7 December 2007

REPRESENTATION

Solicitor advocate for the Applicant:

Mr Silva

Solicitors for the Applicant:

Silva Solicitors

Solicitor Advocate for the Respondent:

Ms Smythe

Solicitors for the Respondent:

Watts McCray

ORDERS

The maternal Uncle’s Application filed 16 November 2007 be dismissed.
The Applicant pay the Respondent’s cost of $500 within 28 days of today’s date.

THE COURT NOTES THAT:

The child N born in July 2000, has regular telephone contact with the maternal grandparents.
The father undertakes to the Court that he will negotiate with the maternal grandparents in good faith for the child to spend time with the maternal grandparents during their visit to Australia during 26 December 2007 to 28 January 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 6290 of 2007

MR & MS VENKATESAN

Applicant

And

MR PATIL

Respondent

REASONS FOR JUDGMENT

Ex tempore

This application which was filed on 16 November 2007 relates to a seven year old child N whose circumstances have been very sad, indeed very tragic. She lost her mother at birth and she has been raised by her father with the assistance of extended family since that time.
She comes from a cultural background which is known the world over for its strong emphasis on family values. I use this term not in the Western “nuclear” sense, but family in the sense of the extended family. I, for one, have always regarded that as something that is to the enormous benefit of a child. I think one of the best things that can happen to her is that she has the benefit of an extended family.
The application however is brought by her maternal aunt and uncle. They are seeking to spend time with the child this coming Christmas. The evidence indicates that the last time that there has been any physical contact between the child and the applicants is about two years ago. However, the material indicates that when she and her father came back to Australia in 2006 that there had been some form of communication between them up until that date.
The father, who is the respondent in the proceedings, sets out in his evidence the circumstances of the child and his own circumstances since coming back to Australia in May 2006. Amongst other things, he says that he moved to Sydney and resided in their current home at P…

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 Venkatesan & Pawar

Details

AGLC: Venkatesan & Pawar [2007] FMCAfam 1109
Case: [2007] FMCAfam 1109
Decision Date: 7 December 2007

CaseChat Overview and Summary

Venkatesan & Pawar involved a dispute between the maternal uncle of a child and the child’s father. The uncle had filed an application seeking various orders concerning the child, who was born in July 2000. The primary issue in this case was whether the uncle should be granted the orders he sought, and if not, what orders should be made regarding the child’s contact with family members. The court had to consider the best interests of the child, the existing arrangements for contact with the maternal grandparents, and the father’s undertakings.

The court determined that the uncle’s application should be dismissed and that the father should pay the respondent's costs of $500. The court noted that the child had regular telephone contact with the maternal grandparents and that the father had committed to negotiate with them in good faith for the child to spend time with them during their upcoming visit to Australia. These factors were central to the court's decision, as they demonstrated that the child's needs were being adequately met through existing arrangements, and there was no compelling reason to alter the status quo. The court also underscored the importance of the father’s commitment to maintaining good faith negotiations with the maternal grandparents.

The court concluded that no further orders were necessary beyond the dismissal of the uncle’s application and the imposition of costs on the uncle. This decision highlights the court’s focus on the child's welfare and the importance of maintaining family relationships through cooperative arrangements. The final orders ensure that the existing contact with the maternal grandparents is preserved and that the father remains committed to facilitating these connections.

Orders

Orders of the court

The maternal Uncle’s Application filed 16 November 2007 be dismissed.

The Applicant pay the Respondent’s cost of $500 within 28 days of today’s date.

THE COURT NOTES THAT:

The child N born in July 2000, has regular telephone contact with the maternal grandparents.

The father undertakes to the Court that he will negotiate with the maternal grandparents in good faith for the child to spend time with the maternal grandparents during their visit to Australia during 26 December 2007 to 28 January 2008.

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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