Archer & Murray (No 2) - [2022] FedCFamC2F 884

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Archer & Murray (No 2) [2022] FedCFamC2F 884

File number(s): MLC 10226 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 11 July 2022

Catchwords: FAMILY LAW – Review of Senior Judicial Registrar’s decision – where Senior Judicial Registrar refused adjournment and made final parenting orders on an undefended basis at interim hearing – final orders discharged and interim orders made for mother to have sole parental responsibility – father’s time to be limited to electronic communications – orders for hair follicle drug test and restraints – order to list for final defended hearing in default

Legislation:
Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia Act 2021 s 254

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 4 cl 2, pt 14.3, rr 1.21, 1.33, 5.01, 10.27, 14.05, 14.07,

Cases cited:
Allesch v Maunz [2000] HCA 40

Beaton & Beaton [2020] FamCAFC 297

Deiter & Deiter [2011] FAMCAFC 82

Goode & Goode [2006] FamCA 1346

Haddon & Banos [2019] FCCA 2865

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

W (Sex Abuse: Standard of Proof) [2004] FamCA 768

Division: Division 2 Family Law

Number of paragraphs: 68

Date of hearing: 16 June 2022

Place: Hobart

Counsel for the Applicant: Ms Dellidis

Solicitor for the Applicant: Hargreaves Family Lawyers

For the Respondent: Self- represented litigant
ORDERS

MLC 10226 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ARCHER

Applicant

AND:
MR MURRAY

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

11 JULY 2022

THE COURT ORDERS THAT:
1.The time for filing of the Application for Review is extended to 25 March 2022.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.The Court Orders dated 13 December 2012 and 1 March 2022 are discharged.
3.The Mother MS ARCHER (“the Mother”) have sole parental responsibility for the children X, born in 2006, Y, born in 2007 and Z, born in 2010, (“the children”).
4.The Mother keep the Father MR MURRAY (“the Father”) updated and advised, as soon as practicable, as to major long-term decisions she has made relating to the children.
5.The children live with the Mother.
6.The Father’s time with the children is limited to electronic communication by telephone call, for half an hour each Sunday and subject to the following terms:
(a)The Father is to initiate the call to the mother’s mobile phone number at 5.30pm AEST or within 5 minutes before or after that time;
(b)The three children are to be present and the call taken on loud speaker so collective discussion can occur; and
(c)The Mother facilitate the taking of the call by ensuring the phone is available and charged to receive the call and the children are present.

7.By 4.00pm on 12 August 2022, the Father must:
(a)File and serve an affidavit of evidence relied upon in support of the parenting orders he seeks;
(b)Submit to hair testing for…

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 Archer & Murray (No 2)

Details

AGLC: Archer & Murray (No 2) [2022] FedCFamC2F 884
Case: [2022] FedCFamC2F 884
Decision Date

CaseChat Overview and Summary

This decision involves an Application for Review of parenting orders made by a Senior Judicial Registrar (SJR) in Archer & Murray (No 2) [2022] FedCFamC2F 884. The mother sought to discharge the previous parenting orders and sought sole parental responsibility and that the father be limited to electronic communication with the children. The father sought to review the final parenting orders made by the SJR. The father argued that the SJR should not have made final parenting orders on an undefended basis. The mother argued that the Application for Review was out of time and should be dismissed. The Court determined that the SJR had erred in making final parenting orders on an undefended basis and that the father was not in default. The Court found that it was appropriate to make interim parenting orders that provide for the welfare of the children while also affording procedural fairness to the father. The Court made orders for the mother to have sole parental responsibility for the children, for the children to live with the mother, for the father to have limited contact with the children by phone, and for the father to undergo a hair follicle drug test and obtain a report from his psychiatrist. The Court also made orders for the father to be restrained from discussing the proceedings with the children and from denigrating or insulting the mother. The Court ordered that the proceedings be listed for a final hearing in default.

Orders