BALLAN & SANDFORD

[2018] FCCA 2436

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALLAN & SANDFORD [2018] FCCA 2436

Catchwords:
FAMILY LAW – Application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside parenting orders made in the absence of the Mother – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.16.05

Cases cited:

Clifford & Mountford [2006] 219 FLR 437

Applicant: MR BALLAN

Respondent: MS SANDFORD

File Number: DNC 445 of 2012

Judgment of: Judge Altobelli

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

Solicitors for the Applicant: Carter Ferguson Solicitors and Attorneys

Counsel for the Respondent: Mr Selfridge

Solicitors for the Respondent:	O'Neill Family Law
Solicitors for the Independent Children's Lawyer:	Acorn Lawyers

ORDERS

1. The Application filed by Ms Sandford on 20 July 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ballan & Sandford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

DNC 445 of 2012

MR BALLAN

Applicant

And

MS SANDFORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These Reasons for Judgment explain why the Court has dismissed the Mother’s Application filed 20 July 2018.

Background

1. By way of an Application filed 20 July 2018 the Applicant, the Mother in this case, asked the Court to make certain orders in relation to her son [X], born 2009. The Respondent to the Application is [X]’s Father. The Application itself seeks orders discharging Orders made on 20 June 2018 on an undefended basis. Assuming that such order was granted, the Mother proposes an order that [X] live with her, and that she have sole parental responsibility in relation to her son. [X] would then spend time with his Father as agreed between the parents. The Mother also sought a recovery order. In addition, all of these orders were sought on an ex-parte basis.

2. The Father’s Response was filed 7 August 2018. He sought that the Mother’s Application be dismissed.

3. The matter came before me on 8 August 2018. Mr De Jonge, Solicitor, appeared on behalf of the Mother. Mr Selfridge of counsel appeared on behalf of the Father, and Mr Williamson as the Independent children’s lawyer. 

4. Despite the form of the Mother’s Application, her Solicitor explained that it was, in effect, an application under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth). Mr De Jonge explained that, in effect, the Mother’s case was based on the lack of procedural fairness that was extended to her, in making the Orders of 20 June 2018.

5. Despite the unusual form of the orders sought on behalf of the Mother, the Court was prepared to treat the Application as being, in substance, an application under rule 16.05. No prejudice was caused to the other parties as a result of doing so.

6. Before setting out the further background in this case, it is important to record that the Court extended to the Applicant Mother, and to her…