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White and Green and Ors

White and Green and Ors

Case [2009] FamCA 237 1 April 2009

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FAMILY COURT OF AUSTRALIA

WHITE & GREEN AND ORS (NO. 2)

[2009] FamCA 237

FAMILY LAW – CHILDREN – Interim parenting orders where child in Singapore – order for the return of the child to Australia where husband restrained from leaving Australia – Determination of best interest principles in a truncated hearing – injunctions relating to husband and third parties – application by husband for discharge of an exparte order for the appointment of a case guardian for the wife

Family Law Act 1975 (Cth)

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57
Blue Seas Investments Pty Ltd v Mitchell and MacGillivray (1999) FLC 92-856
Cardile v Led Builders Pty Ltd [1999] HCA 18; 198 CLR 380
Goode and Goode (2006) FLC 93-286
In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170
Kannis v Kannis (2003) FLC 93-135
Keach (2007) FLC 93-353
LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91
Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365; (2004) FLC 174
Rhodes v Swithenbank (1889) 22 QBD 577
Sampson and Hartnett (No 10) [2007] FamCA 1365
State Rail Authority v Hammond (1988) 15 NSWLR 395
Stevenson v State of Tasmania [2005] TASSC 33
The Queen v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447
Thomas v Mowbray [2007] HCA 33
Wilson (2008) FamCA 903

APPLICANT:

Mrs White (Snr) as Case Guardian for Ms White

RESPONDENT:

Mr Green

SECOND & THIRD RESPONDENTS:

Mr and Mrs Green (Snr)

FILE NUMBER:

MLC

9805

2008

DATE DELIVERED:

1 April 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

17 FEBRUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR KIRKHAM QC WITH MR WOOD

SOLICITOR FOR THE APPLICANT:

GADENS LAWYERS

COUNSEL FOR THE RESPONDENT:

MR ST JOHN SC

SOLICITOR FOR THE RESPONDENT:

MDP MCDONALD PARTNERS

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

MR ST JOHN SC

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

MDP MCDONALD PARTNERS

Orders

That until further order, the child … born … March 2008 live with the wife and Mrs White (Snr).
That the husband Mr Green return the child to Australia forthwith.
That paragraph 1 of the orders made 22 December 2008 (that is the injunction restraining Mr Green (Snr)) is forthwith discharged.
That the Australian Federal Police be forthwith advised of the discharge of the said order.
That pursuant to Section 68L(2) the Family Law Act 1975 the child … born on … March 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the…

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 White and Green and Ors

Details

AGLC: White and Green and Ors [2009] FamCA 237
Case: [2009] FamCA 237
Decision Date: 1 April 2009

CaseChat Overview and Summary

In the matter of *White and Green and Ors*, Justice Cronin of the Family Court of Australia considered a dispute concerning the welfare and location of a child born in March 2008. The proceedings involved the wife, the husband (Mr Green), and Mrs White (Snr), with the court issuing orders that directly impacted the child's living arrangements and the husband's obligations.

The central legal issues before the court revolved around the immediate care and location of the child, and the appropriate protective measures to be in place. Specifically, the court was required to determine with whom the child should live, whether the child should be returned to Australia, and the necessity of continuing or discharging existing injunctions. Furthermore, the court had to consider the child's right to independent representation and the procedural steps required to facilitate this.

Justice Cronin ordered that the child live with the wife and Mrs White (Snr) until further order, and that the husband, Mr Green, return the child to Australia forthwith. The court also discharged an injunction previously restraining Mr Green (Snr) and directed that the Australian Federal Police be notified of this discharge. Crucially, the court ordered that the child be separately represented pursuant to s 68L(2) of the *Family Law Act 1975*, requesting Victoria Legal Aid to arrange this representation. The court further stipulated that upon the child's return to Australia, parenting applications would be listed for an urgent interim hearing concerning the child's time with the husband and other ongoing care arrangements.

Orders

Orders of the court

That until further order, the child … born … March 2008 live with the wife and Mrs White (Snr).

That the husband Mr Green return the child to Australia forthwith.

That paragraph 1 of the orders made 22 December 2008 (that is the injunction restraining Mr Green (Snr)) is forthwith discharged.

That the Australian Federal Police be forthwith advised of the discharge of the said order.

That pursuant to Section 68L(2) the Family Law Act 1975 the child … born on … March 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

That upon the child being returned to Australia, the parenting applications filed by the wife and the case guardian and the husband be listed for an urgent interim hearing in relation to:

(a) the time to be spent between the husband and the child pending further order; and

(b) any other orders relating to the ongoing care of the child.

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.

Citations

AGLC Citation

White and Green and Ors [2009] FamCA 237

Most Recent Citation

Wenben & Larkins [2022] FedCFamC1F 68

Cases citing this decision · 3 of 3 shown

Wenben & Larkins
[2022] FedCFamC1F 68 Para 26

…oad by reference to the word “including” but then with specific references in the sub paragraphs (a) – (d).[1] [1] White & Green and Ors (No.2) [2009] FamCA 237 at [125].…
Marlow and Birkin
[2017] FCCA 2781 Para 14

…I also note the decision of the Honourable Justice Cronin in White & Green and Ors (No.2) [2009] FamCA 237 . In this case a child of the parents was living with the Paternal Grandmother in Singapore and the parents were in Australia. His Honour referred to Sampson & Hartnett (no. 10) 2007 FamCA 1365 and said at pag…
BABIC & TAKALA
[2017] FCCA 1631 Para 1

…Section 68B is framed very broadly. In White & Green and Ors [2009] FamCA 237 at paragraph [125] Justice Cronin held with respect the injunctive power: “The use of the word “including” (in section 68B) must be read as not limiting the Court to the matters set out in sub paras (a) to (d) which in turn leaves the Cou…

View all 3 citing cases →

Cases cited in this decision · 16 of 16 shown

Wilson and Wilson (No.2)
[2008] FamCA 903 Para 7

…The Senior Registrar’s attention was drawn to a decision of mine named Wilson [2008] FamCA 903. I have to say that I do not see the relevance of that decision.…
Sampson & Hartnett (No 10)
[2007] FamCA 1365 Para 5

…for the husband to arrange the return of the child. The jurisdiction to make that particular order is canvassed below (see Sampson and Hartnett No 10 [2007] FamCA 1365).…
Thomas v Mowbray
[2007] HCA 33 Para 28

…I am very conscious also of what the Kirby J said in Thomas v Mowbray [2007] HCA 33 (citations omitted): International law, ratified by and binding on Australia, protects the rights of individuals to be free of arbitrary detention and the unlawful deprivation of liberty. International law also safeguards individ…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46 Para 45

…parte basis, the test which should have been applied is set out in the decision of the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57. There, Gummow and Hayne JJ said: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratori…
Stevenson v State of Tasmania
[2005] TASSC 33 Para 12

…e done without authority[2]. [1] Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 [2] Stevenson v State of Tasmania [2005] TASSC 33 and also Rhodes v Swithenbank (1889) 22 QBD 577 at 579…
Minister for Immigration and Multicultural and Indigenous Affairs v B
[2004] HCA 20 Para 13

…Senior Counsel for the husband’s father referred me to Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365. Gleeson CJ and McHugh J said that there were two specific issues under consideration. The first was whether there was jurisdiction to order a minister of the Cr…
Cardile v LED Builders Pty Ltd
[1999] HCA 18 Para 21

…In Cardile v Led Builders Pty Ltd [1999] HCA 18; 198 CLR 380, a case involving orders relating to asset protection, the High Court of Australia discussed the relevant Federal Court of Australia legislation as follows (citations omitted): The power of the Federal Court of Australia to make orders to preserve asse…
State Rail Authority of New South Wales v Hammond
[1989] HCATrans 212 Para 11

…In State Rail Authority v Hammond (1988) 15 NSWLR 395 Kirby P described the nature of the rule as procedural and not substantive. His Honour said that what was affected was not the capacity to sue but the procedure by which that capacity was exercised. That is still the case having regard to the fact that in most juri…
Re LSH; Ex parte RTF
[1987] HCA 53 Para 18

…In LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91, the High Court of Australia looked at the Family Court’s power in relation to third parties. In that case, an injunction was sought against a party to a marriage and her new husband to restrain them from pursuing an adoption of a child of the marriage. The H…
R v Ross-Jones; Ex parte Green
[1984] HCA 82 Para 18

…ot otherwise be liable to perform: Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at pp 354-355; The Queen v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 200-202. In the first of these cases Gibbs C.J. pointed out (at p 354) that: “... it would be unreasonable to impute to the…
In the Marriage of Cormick
[1984] HCA 79 Para 19

…ed to one parent, though it is awarded as against the other parent, it is enforceable against others.” Subsequently in In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170, Gibbs C.J. (with whom Wilson, Deane, Dawson and I agreed) observed (at p.176) that: “... the law defines the rights of the parties t…
Ascot Investments Pty Ltd v Harper
[1981] HCA 44 Para 18

…In LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91, the High Court of Australia looked at the Family Court’s power in relation to third parties. In that case, an injunction was sought against a party to a marriage and her new husband to restrain them from pursuing an adoption of a child of the ma…
Ascot Investments Pty Ltd v Harper
[1981] HCA 1 Para 18

…existing right or to impose on a third party a duty which he or she would not otherwise be liable to perform: Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at pp 354-355; The Queen v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 200-202. In the first of these cases Gibbs C.J. pointe…
R v Lambert; Ex parte Plummer
[1980] HCA 52 Para 19

…nd enforcement of the rights and interests of the parties to a marriage or either of them. As I pointed out in The Queen v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447, at p 466: “It is of the essence of an award of custody, as with the father's right to custody under the old common law, that it…
Rhodes v Swithenbank
(1889) 22 QBD 577 Para 12

…or Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 [2] Stevenson v State of Tasmania [2005] TASSC 33 and also Rhodes v Swithenbank (1889) 22 QBD 577 at 579…
[1919] 2 KB 538
[1919] 2 KB 538 Para 12

…e “benefit” of the disabled person because it is otherwise done without authority[2]. [1] Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 [2] Stevenson v State of Tasmania [2005] TASSC 33 and also Rhodes v Swithenbank (1889) 22 QBD 577 at 579…

Legislation cited in this decision · 7

Family Law Act 1975 (Cth)
1 mention (from Para 5)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 12)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 22)
High Court Rules 2004 (Cth)
1 mention (from Para 9)
Supreme Court Rules 2000 (TAS)
1 mention (from Para 9)
Uniform Civil Procedure Rules 1999 (Qld)
94) 1 mention (from Para 9)