Wade & McPherson - [2013] FCCA 1583

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADE & MCPHERSON

[2013] FCCA 1583

Catchwords:
FAMILY LAW – Children – Jurisdiction – whether Federal Circuit Court has jurisdiction to hear application for parenting orders – where child covered by state welfare law – where Court has no jurisdiction under Family Law Act 1975 (Cth) s. 69ZK.

PRACTICE & PROCEDURE – Advisory opinion – where there is no controversy between the parties on a point – where there is no issue the Court declines to rule on the issue.

PRACTICE & PROCEDURE – Case stated – where Applicant seeks that the substantive application is removed to the Full Court of the Family Court for a special case to be stated – the procedure under Family Law Act 1975 (Cth) s.94A should only be resorted to in exceptional circumstances – where factual issues neither long nor complex – question of law can be determined at first instance.

Legislation:

Family Law Act 1975(Cth), ss.69ZF, 69ZG,69ZK, 70C, 94A, 94AAA, 121

Family Law Regulations 1984 (Cth), regs. 12B, 12BA, Sch 5
Family Law Rules 2004 23.01A
Federal Circuit Court Rules 2001 r.1.05, Sch. 3, Part 1
Children and Young Persons (Care and Protection) Act 1998 (NSW), s.79
Children (Care and Protection) Act 1987 (NSW) s.72

Commonwealth Powers (Family Law – Children) Act 1986) (NSW), s.3

Fay & Turner [2008] FMCAfam 1508
In the Marriage of Daff (1982) 9 Fam LR 546; (1984) FLC 91-516
In the Marriage of Mullane (1980) 5 Fam LR 801; FLC 90-826
Re Felicity [2012] NSWSC 494
Re J (1990) 14 Fam LR 584

Applicant:

MS WADE

Respondent:

MR MCPHERSON

File Number:

SYC 1930 of 2013

Judgment of:

Judge Scarlett

Hearing date:

23 September 2013

Date of Last Submission:

23 September 2013

Delivered at:

Sydney

Delivered on:

11 October 2013

REPRESENTATION

Solicitors for the Applicant:

Capellia Legal

Solicitors for the Respondent:

Little & Associates

ORDERS

The Application in a Case filed on 8 May 2013 is dismissed.
The Initiating Application filed on 11 April 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1930 of 2013

MS WADE

Applicant

And

MR MCPHERSON

Respondent

REASONS FOR JUDGMENT

Application

The Respondent seeks an order for summary dismissal of the Application brought by the Applicant for parenting Orders concerning the parties’ daughter.
The Application seeks a declaration from the Court that s.69ZK of the Family Law Act 1975 (Cth) does not apply to orders of the Children’s Court of New South Wales made on 17 September 2010 concerning the child.
The Applicant has also brought an Application in a Case seeking removal of the proceedings to the Full Court of the Family Court under the provisions of s. 94A of the Family Law Act.
The Respondent has filed a Response seeking a dismissal of the Application for want of jurisdiction.

Background

The parties are the parents of a…

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

AGLC: WADE & MCPHERSON [2013] FCCA 1583
Case: [2013] FCCA 1583
Decision Date: 11 October 2013

CaseChat Overview and Summary

The Federal Circuit Court, presided over by Judge Scarlett, considered an application for parenting orders concerning a child who was subject to state welfare law. The central dispute revolved around whether the Federal Circuit Court possessed jurisdiction to hear the application, particularly in light of section 69ZK of the *Family Law Act 1975* (Cth).

The court was required to determine two primary legal issues. Firstly, whether it had jurisdiction to make parenting orders under the *Family Law Act 1975* (Cth) when the child in question was already covered by state welfare law. Secondly, the court considered whether the circumstances warranted the removal of the substantive application to the Full Court of the Family Court for a special case to be stated, as requested by the applicant.

Judge Scarlett reasoned that section 69ZK of the *Family Law Act 1975* (Cth) expressly limits the court's jurisdiction in such circumstances, thereby precluding the making of parenting orders. Regarding the request for a special case, the court held that the procedure under section 94A of the *Family Law Act 1975* (Cth) should be reserved for exceptional circumstances. As the factual issues were neither lengthy nor complex, and the question of law could be determined at first instance, the court found no basis to accede to the applicant's request for removal.

Consequently, the court dismissed both the Application in a Case filed on 8 May 2013 and the Initiating Application filed on 11 April 2013.

Orders

Orders of the court

The Application in a Case filed on 8 May 2013 is dismissed.

The Initiating Application filed on 11 April 2013 is dismissed.

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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