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
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
These Reasons for Judgment explain why the Court has dismissed the Mother’s Application filed 20 July 2018.
Background
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.
The Father’s Response was filed 7 August 2018. He sought that the Mother’s Application be dismissed.
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.
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.
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.
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…
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- Ballan and Sandford [2018] FCCA 2436
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- [2018] FCCA 2436
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CaseChat Overview and Summary
The central legal issue before the Court was whether the parenting orders previously made should be set aside pursuant to rule 16.05 of the *Federal Circuit Court Rules 2001* (Cth). This rule allows for the setting aside of an order where a party has not attended a hearing.
Judge Altobelli dismissed Ms Sandford's application. While the Court acknowledged that Ms Sandford had not attended the hearing at which the parenting orders were made, it found that she had not satisfied the requirements of rule 16.05. The Court determined that Ms Sandford had not demonstrated that she had a meritorious case to argue in relation to the parenting orders, nor had she shown that she had acted with due diligence in seeking to set aside the orders.
Consequently, the Court ordered that the application filed by Ms Sandford on 20 July 2018 be dismissed.
Orders
Orders of the court
1.
The Application filed by Ms Sandford on 20 July 2018 be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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