Archer & Murray (No 3) - [2022] FedCFamC2F 1630

Federal Circuit and Family Court of Australia
(DIVISION 2)
Archer & Murray (No 3) [2022] FedCFamC2F 1630

File number(s): MLC 10226 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 23 November 2022

Catchwords: FAMILY LAW – parenting – application for review – father failed to file any evidence – non-compliance with orders – where final orders were made at an interim hearing on an “undefended” basis by a Senior Judicial Registrar – father was in attendance – where the father is self-represented – application successful

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Morgan & Valverde [2022] FedCFamC1A 133

Re F: Litigants in Person Guidelines [2001] FamCA 348

Division: Division 2 Family Law

Number of paragraphs: 27

Date of last submission/s: 21 November 2022

Date of hearing: 21 November 2022

Place: Adelaide

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Ms Segerius from Hargreaves Family Law
ORDERS

MLC 10226 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MURRAY

Applicant

AND:
MS ARCHER

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

23 NOVEMBER 2022

UPON NOTING that despite the father’s failure to file evidence, the matter should be listed for a final hearing and the father given an opportunity to cross‑examine subject to any section 102NA Orders and make submissions and FURTHER NOTING that in the event the father fails to appear, then the matter may then proceed on an undefended basis
THE COURT ORDERS THAT:
1.The Orders of Senior Judicial Registrar Conlan made on 15 September 2022 be dismissed.
2.The matter be referred to the National Assessment Team for allocation for a date for case management.
3.The orders of 11 July 2022 of her Honour Judge Taglieri remain in full force and effect, including the appointment of the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Archer & Murray (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)
JUDGE JENKINS

These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
This is a matter that comes before me as a result of the father’s application to review orders…

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 3)

Details

AGLC: Archer & Murray (No 3) [2022] FedCFamC2F 1630
Case: [2022] FedCFamC2F 1630
Decision Date

CaseChat Overview and Summary

This case involved an application by the father, Mr Murray, to review parenting orders made by Senior Judicial Registrar Conlan. The Court had to decide whether Mr Murray should be given an opportunity to cross-examine witnesses and make submissions despite his failure to file any evidence or comply with previous orders. The legal issues were whether Mr Murray’s failure to file evidence or comply with orders justified proceeding on an undefended basis, and whether he was entitled to procedural fairness despite his lack of participation. The Court considered the matter of Morgan & Valverde and the guidelines for litigants in person. The Court found that despite Mr Murray’s failure to file evidence, he was entitled to procedural fairness and should be given an opportunity to cross-examine witnesses and make submissions before final orders were made. The Court also noted that the father had significant mental health issues which may impact his ability to file evidence.

The Court dismissed the orders made by Senior Judicial Registrar Conlan and referred the matter to the National Assessment Team for allocation for a date for case management. The Court also noted that the orders made by Judge Taglieri on 11 July 2022 remained in full force and effect. The Court ordered that the matter be listed for a final hearing, and that Mr Murray be given an opportunity to cross-examine witnesses and make submissions, subject to any section 102NA Orders. If Mr Murray failed to appear at the final hearing, the matter could proceed on an undefended basis. The Court rejected an oral application by the mother’s solicitor to restrain Mr Murray from filing any further applications.

Orders