Canvin & Jesney

Case [2021] FedCFamC2F 145


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Canvin & Jesney [2021] FedCFamC2F 145

File number(s): MLC 10217 of 2021
Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND
Date of judgment: 13 October 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to grant urgent listing of interim parenting matter – Where the Registrar’s decision is reviewable pursuant to section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the order for urgent listing sought was not supported by the Applicant’s proposal for Interim Parenting Orders – Application for urgent listing dismissed – Orders made to allow submissions on costs.
Legislation:

Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 256(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 1.07, 1.31, 2.18, 5.04, 14.05, 14.07

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 r 2.01

 Family Law Case Management Central Practice Direction paragraphs 1.1, 4.6, 5.10

Cases cited:

Bannerman & Frank [2015] FCCA 3171

Dyne & Dyne [2021] FedCFamC1F 96

Feiteiro & Feiteiro [2019] FamCA 647

Hearnes & Jellets [2020] FCCA 2722

Lombardi & Rider [2021] FedCFamC2F 57

Myers & Myers [2011] FMCAfam 1104

Palmer & Palmer [2012] FMCAfam 522

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Division: Division 2 Family Law
Number of paragraphs: 65
Date of hearing: 30 September 2021
Place: Sydney via web conference
Counsel for the Applicant: Mr Glezakos
Solicitor for the Applicant: Schetzer Papaleo Family Lawyers
Counsel for the Respondent: Ms Mansfield
Solicitor for the Respondent: Coote Family Lawyers

ORDERS

MLC10271/2021
 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MR CANVIN

Applicant

AND:

MS JESNEY

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:

1.The Applicant Father’s Application in a Case filed on 22 September 2021 is dismissed.

2.In the event of the Respondent Mother seeking an order for costs in respect to the Applicant Father’s Application above, she is to provide to my Associate and the Applicant Father’s solicitor written submissions of no more than 3 pages within 7 days of the date of these orders.

3.In the event of the Applicant Father disputing any Application for Costs by the Respondent Mother, he is to, within 7 days of receipt of the Respondent Mother’s written submissions, provide written submissions in reply, of no more than 3 pages, to my Associate and to the Respondent Mother’s solicitors.

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

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AGLC
Canvin & Jesney [2021] FedCFamC2F 145
Case
[2021] FedCFamC2F 145
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter between Mr Canvin, the applicant, and Ms Jesney, the respondent, was heard by Deputy Chief Judge McClelland on 13 October 2021. The applicant sought urgent listing of an interim parenting matter, which the Registrar had refused. The applicant was dissatisfied with the Registrar's decision and applied to the Court for review of that decision. The primary legal issue for the Court was whether the Registrar's decision was reviewable under section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

The Court found that the Registrar's decision was indeed reviewable under section 256 of the Act. The Court also considered whether the applicant had provided a sufficient basis for the urgent listing of the interim parenting matter. The Court found that the applicant's proposal for Interim Parenting Orders did not provide sufficient grounds for the urgent listing of the matter. The Court dismissed the applicant's application and ordered that if the respondent sought an order for costs, she was to provide written submissions of no more than three pages within seven days of the date of the order. The applicant was also ordered to provide written submissions in reply within seven days of receipt of the respondent's submissions if he disputed any application for costs. The form of the order was subject to the entry in the Court's records.

Orders

Orders of the court

MLC10271/2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CANVIN

Applicant

AND:

MS JESNEY

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:

1. The Applicant Father’s Application in a Case filed on 22 September 2021 is dismissed.

2. In the event of the Respondent Mother seeking an order for costs in respect to the Applicant Father’s Application above, she is to provide to my Associate and the Applicant Father’s solicitor written submissions of no more than 3 pages within 7 days of the date of these orders.

3. In the event of the Applicant Father disputing any Application for Costs by the Respondent Mother, he is to, within 7 days of receipt of the Respondent Mother’s written submissions, provide written submissions in reply, of no more than 3 pages, to my Associate and to the Respondent Mother’s solicitors.

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

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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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