Cress & Cress - [2023] FedCFamC2F 168

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cress & Cress [2023] FedCFamC2F 168

File number(s): SYC 7421 of 2022

Judgment of: JUDGE MURDOCH

Date of judgment: 20 February 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review filed by the father in relation to the non-allocation of an urgent listing date – Application dismissed.

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

Cases cited:
Canvin & Jesney [2021] FedCFamC2F 145

Lombardi & Rider [2021] FedCFamC2F 57

Myers & Myers [2011] FMCAfam 1104

Division: Division 2 Family Law

Number of paragraphs: 27

Date of last submission/s: 17 February 2023

Date of hearing: In Chambers on 20 February 2023

Place: Parramatta

Solicitor for the Applicant Boyce & Boyce Family Lawyers

Solicitor for the Respondent Fuentes Legal
ORDERS

SYC 7421 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CRESS

Applicant

AND:
MS CRESS

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

20 February 2023

THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 25 November 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 Cress & Cress has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH:
INTRODUCTION

These are parenting proceedings with respect to the three children of the relationship:
(a)X, born in 2011 and currently 11 years and 6 months old;
(b)Y, born in 2013 and currently 9 years and 8 months old; and
(c)Z, born in 2014 and currently 8 years and 3 months old.
(“the children”).
Listed today is an Application for Review filed by the father on 25 November 2022 of a listing decision made by a Registrar of the court on 24 November 2022 (“the Review Application.”)
The parties have consented to the Review Application being heard in Chambers on written submissions filed by each of the parties.
For reasons which I will now outline, the Review Application will be dismissed.
EVIDENCE
I have read the following documents on behalf of the applicant father:
·The Review Application;
·Application for Final Orders filed 20 October 2022;
·Affidavit filed 20 October 2022; and
·The written submissions filed on 17 February 2023.
I have read the following documents of the respondent mother:-
·Response…

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: Cress & Cress [2023] FedCFamC2F 168
Case: [2023] FedCFamC2F 168
Decision Date

CaseChat Overview and Summary

This case involves a Review Application filed by the father in relation to a decision made by a Registrar regarding the listing of his interim parenting application. The matter pertains to three children born in 2011, 2013, and 2014, and the application seeks urgent interim orders concerning the children's living arrangements and the mother's alleged drug use and supervision issues. The court was required to decide whether the father's Application for Review should be granted, allowing for an urgent listing of the interim parenting application.

The court considered the relevant legal principles, including the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the jurisprudence on review applications. The father argued that there were urgent circumstances justifying an expedited hearing, while the mother contended that the matter should proceed in the normal course, allowing for independent expert reports to be obtained. The court examined the four relevant considerations outlined in Myers & Myers (2011) 253 FLR 445; [2011] FMCAfam 1104, which include the applicant's reasonable basis for the substantive orders sought, the risk of prejudice without an urgent listing, the absence of unreasonable delay in approaching the court, and the availability of a judicial officer to hear the application.

The court found that the father had been aware of the mother's drug use and history but did not file an urgent application at the time when the risk to the children was at its highest. The father had also entered into a shared care arrangement with the mother in February 2022, and had not availed himself of opportunities to spend time with the children and participate in decision-making and schooling events. The court determined that the matter was not of such urgency as to warrant a departure from the normal course of proceedings and that the relevant evidence should be obtained before the court could properly determine what is in the best interests of the children.

The court dismissed the father's Application for Review, finding that the matter should proceed on its current pathway with further directions to be made on 23 March 2023. The father's request for an urgent listing of his interim parenting application was denied, and the matter will continue to be managed in accordance with the court's usual case management practices.

THE COURT ORDERS THAT: 1. The Application for Review filed by the Father on 25 November 2022 is dismissed.

Orders