X and Y - [2002] FamCA 767

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE NO. AD 3433 of 2002

IN THE MATTER OF:               X and
  Y
  [by their Next Friend MS B]
  (Applicants)
  and

MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
(Respondent)

MR B

(First Proposed Intervener)

MS B
(Second Proposed Intervener)

CORAM: THE HONOURABLE JUSTICE DAWE

DATE(S) OF HEARING: 6 SEPTEMBER 2002

DATE OF JUDGMENT: 6 SEPTEMBER 2002

EX-TEMPORE JUDGMENT

APPEARANCES: MR HAINES, QC (instructed by JEREMY MOORE & ASSOCIATES) appeared on behalf of the APPLICANTS

MR KENNETT (instructed by AUSTRALIAN GOVERNMENT SOLICITOR) appeared on behalf of the RESPONDENT
MS MACDONALD (instructed by BOYLAN & CO) appeared on behalf of the FIRST PROPOSED INTERVENER
MRS WEST (instructed by DENISE RIENIETS & ASSOCIATES) appeared on behalf of the SECOND PROPOSED INTERVENER

I have before me the application on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs to state a case in relation to the legal issues that have arisen in the early stages of this matter. Originally the children, the applicants, through their next friend, opposed the stating of a case, but by an early stage this morning their counsel indicated that they did not now oppose the application.

When the matter came on before Justice Burr, the father was given leave to intervene in these proceedings, but has not done so. He was, however, represented by counsel who indicated that the father did not oppose the Case Stated. Similarly, the mother is represented before me and has indicated an intention to file proceedings not yet filed. Counsel for the mother also indicated that they did not oppose the Case Stated.

The provisions of the Family Law Act that are relevant are set out in Section 94A which reads:
If in proceedings in a Court being proceedings in which a decree or decision, to which section 94(1) and (1AA) applies, could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.

Before me today I have the Draft Case Stated of the Minister and the Draft Case Stated of the counsel for the children. When the children's counsel indicated they did not oppose the application of the Minister I was given an agreed Draft Case Stated.

The emphasis in Section 94A is that the Judge wishes that the case be stated on the question of law. That clearly indicates that the Case Stated must be one which is made with the approval of the Judge, not simply because all of the parties consent or because the parties raise the issue of a Case Stated.

I accept that this is a matter which falls within the definition of Section 94A as one…

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 X and Y

Details

AGLC: X and Y [2002] FamCA 767
Case: [2002] FamCA 767
Decision Date: 11 September 2022

CaseChat Overview and Summary

In the matter of X and Y, the applicants sought to have a case stated to the Full Court of the Family Court of Australia. The respondent Minister did not oppose this application. The primary judge, Dawe J, considered whether it was appropriate to state a case in these proceedings, noting the unusual nature of the circumstances and the potential for factual matters to change.

The central legal issue before the Court was whether it was reasonable and in the interests of justice to state a case to the Full Court, given the specific facts and the potential advantages and disadvantages of such a course of action. The Court was required to exercise its discretion in determining this procedural question.

Dawe J reasoned that while the Court has the discretion to state a case, it must carefully weigh the benefits against the risks. In this particular instance, the judge concluded that stating a case would not be reasonable. The judge noted that the factual circumstances were likely to evolve, and that the proposal to hear and determine the question of jurisdiction within a fortnight offered a more efficient and appropriate path forward.

Consequently, the application to state a case was dismissed. The Court indicated its intention to proceed with hearing and determining the question of jurisdiction in the near future.

Orders