Arturo & Indiana - [2024] FedCFamC1F 105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arturo & Indiana [2024] FedCFamC1F 105

File number: MLC 14976 of 2023

Judgment of: STRUM J

Date of judgment: 22 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – INITIATING APPLICATION SUMMARILY DISMISSED – Where final parenting orders were made by consent in August 2023 – Where a fresh Initiating Application was filed in December 2023 – Where the parties did not attend family dispute resolution prior to the father filing a fresh Initiating Application, as required by the 2023 orders – Where the family dispute resolution practitioner provided a s 60I certificate stating it the matter was not appropriate for dispute resolution – Where the family dispute resolution practitioner did not speak to the mother before determining the matter’s suitability for dispute resolution – Where no genuine effort has been made to resolve the matter through family dispute resolution – Where there is no significant change in circumstances – Application dismissed summarily.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4, 10F, 60I, 64B, 69C

Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25

Cases cited: Barr & Barr (No 3) [2023] FedCFamC1F 873

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 22 February 2024

Place: Melbourne

The Applicants: Litigant in person

The Respondent: Litigant in person
ORDERS

MLC 14976 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ARTURO

First Applicant

MS ARTURO

Second Applicant

AND:
MS INDIANA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Applicants’ Initiating Application filed 19 December 2023, as amended on 19 February 2024, and Application in a Proceeding filed 19 December 2023 be dismissed.
2.In the event that any further application is sought to be filed, including for alleged contravention:
(a)Order 26 of the Orders made on 14 August 2023 and Notation B thereto;
(b)These Orders; and
(c)The Reasons for Judgment delivered this day–

be brought to the attention of the Registry before any such application is accepted for filing.
3.A copy of these Orders and the Reasons for Judgment delivered this day be provided to:
(a)The Director of C Mediation Service; and
(b)The Family Dispute Resolution Practitioner Unit of the Attorney-General’s Department.

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…

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: Arturo & Indiana [2024] FedCFamC1F 105
Case: [2024] FedCFamC1F 105
Decision Date: 22 February 2024

CaseChat Overview and Summary

Arturo and Indiana have a child together. In August 2023, the Federal Circuit and Family Court of Australia made final parenting orders by consent. The orders included a requirement for the parties to participate in family dispute resolution before filing any further application concerning the child. In December 2023, Arturo filed a fresh Initiating Application. The mother did not attend family dispute resolution, and the practitioner determined the matter was not suitable for dispute resolution. The mother had not spoken to the practitioner before this determination. The father did not make a genuine effort to resolve the matter through family dispute resolution. The father did not demonstrate a significant change in circumstances. The court was required to decide whether the father's fresh Initiating Application should be dismissed summarily.

The court found that the father did not comply with the requirement to attend family dispute resolution before filing the fresh Initiating Application. The family dispute resolution practitioner did not speak to the mother before determining the matter’s suitability for dispute resolution, which was a procedural error. However, the court found that there was no genuine effort by the father to resolve the matter through family dispute resolution. The father did not demonstrate a significant change in circumstances. The court held that the fresh Initiating Application should be dismissed summarily. The court dismissed the father’s fresh Initiating Application and ordered that any further application be brought to the attention of the Registry before being accepted for filing. The court also ordered that a copy of the orders and reasons for judgment be provided to the Director of C Mediation Service and the Family Dispute Resolution Practitioner Unit of the Attorney-General’s Department.

Orders

Orders of the court

MLC 14976 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ARTURO

First Applicant

MS ARTURO

Second Applicant

AND:

MS INDIANA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Applicants’ Initiating Application filed 19 December 2023, as amended on 19 February 2024, and Application in a Proceeding filed 19 December 2023 be dismissed.

2. In the event that any further application is sought to be filed, including for alleged contravention:

(a) Order 26 of the Orders made on 14 August 2023 and Notation B thereto;

(b) These Orders; and

be brought to the attention of the Registry before any such application is accepted for filing.

3. A copy of these Orders and the Reasons for Judgment delivered this day be provided to:

(a) The Director of C Mediation Service; and

(b) The Family Dispute Resolution Practitioner Unit of the Attorney-General’s Department.

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.

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.

File number:	MLC 14976 of 2023
Judgment of:	STRUM J
Date of judgment:	22 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – INITIATING APPLICATION SUMMARILY DISMISSED – Where final parenting orders were made by consent in August 2023 – Where a fresh Initiating Application was filed in December 2023 – Where the parties did not attend family dispute resolution prior to the father filing a fresh Initiating Application, as required by the 2023 orders – Where the family dispute resolution practitioner provided a s 60I certificate stating it the matter was not appropriate for dispute resolution – Where the family dispute resolution practitioner did not speak to the mother before determining the matter’s suitability for dispute resolution – Where no genuine effort has been made to resolve the matter through family dispute resolution – Where there is no significant change in circumstances – Application dismissed summarily.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4, 10F, 60I, 64B, 69C Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25
Cases cited:	Barr & Barr (No 3) [2023] FedCFamC1F 873
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	22 February 2024
Place:	Melbourne
The Applicants:	Litigant in person
The Respondent:	Litigant in person

MLC 14976 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ARTURO First Applicant MS ARTURO Second Applicant
AND:	MS INDIANA Respondent

ORDER MADE BY:	STRUM J
DATE OF ORDER:	22 FEBRUARY 2024