Berry & Berry - [2022] FedCFamC2F 152

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berry & Berry [2022] FedCFamC2F 152

File number(s): CSC 318 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore Reasons for Judgment – Application to review a Registrar’s decision not to urgently list – application dismissed.

Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 14.05, 14.07

Central Practice Direction – Family Law Management dated 1 September 2021

Cases cited:
Canvin & Jesney [2021] FedCFamC2F 145

Lombardi and Rider [2021] FedCFamC2F 57

Myers & Myers [2011] FMCAfam 1104

Division: Division 2 Family Law

Number of paragraphs: 41

Date of hearing: 18 February 2022

Place: Parramatta

Applicant: In person

No appearance for the Respondent

No appearance for the Independent Children's Lawyer
ORDERS

CSC 318 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BERRY

Applicant

AND:
MS BERRY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 21 January 2022 is dismissed.

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 Berry & Berry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION

These are parenting proceedings with respect to the two children of the relationship:
(a)X born in 2011 aged 10 years and 1 month; and
(b)Y born in 2011 aged 10 years and 1 month;
(“the children”).
Listed today is an Application for Review filed by the Father on 21 January 2022 of a listing decision made by a Registrar of the Court on 20 January 2022 (“the Review Application.”)
For reasons which I will now outline, the Review Application will be dismissed.
EVIDENCE
In this matter I have read the following documents, the:-
(a)Initiating Application filed by the Father on 16 April 2021;
(b)Application in a Proceeding filed by the Father on 19 January 2022;
(c)Affidavit of the Father filed on 19 January 2022;
(d)Covering letter of the Father filed 19 January 2022- marked as Exhibit A;
(e)Application for Review filed by the Father on 21 January 2022; and
(f)Further Affidavit of the Father filed 15 February 2022.
Pursuant to Rule 2.18(2)…

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 Berry & Berry

Details

AGLC: Berry & Berry [2022] FedCFamC2F 152
Case: [2022] FedCFamC2F 152
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) dismissed an application for review filed by the Father seeking to urgently list his application for parenting orders. The case involved parenting proceedings concerning two children born in 2011. The Father filed an initiating application for final parenting orders on 16 April 2021, and the Mother responded on 12 July 2021. Interim parenting orders were made on 9 December 2021, with the matter listed for directions on 21 March 2022. The Father subsequently filed an application in a proceeding on 19 January 2022, seeking various orders but not specifically requesting an urgent listing. The matter was listed before a Registrar on 20 January 2022, who allocated a listing date of 21 March 2022. The Father then filed an application for review on 21 January 2022, seeking an urgent listing of his application in a proceeding.

The court held that the Father's application for review was not capable of review, as the Father had not sought any orders with respect to the listing date of the matter in his application in a proceeding. The court further held that even if the application for review was capable of review, it should still be dismissed as the Father had not demonstrated a reasonable basis for arguing for the substantive orders sought, nor had he shown that he would be prejudiced without an urgent listing. The court noted that the matter had been given an efficient allocation of the court's resources and that there were no risk issues identified that would warrant an earlier listing date. The court also highlighted the importance of discouraging review applications of this nature, except in truly urgent circumstances. The application for review was dismissed, and the matter remained listed for directions on 21 March 2022.

Orders