Cripps & Aragon - [2023] FedCFamC2F 1253

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cripps & Aragon [2023] FedCFamC2F 1253

File number: PAC 6751 of 2021

Judgment of: JUDGE BLAKE

Date of judgment: 28 August 2023

Catchwords: FAMILY LAW – Application for review of orders made by a Judicial Registrar - where family consultant appointed under Court orders – where mother filed an affidavit before the father’s interview – where father had not seen affidavit – where Registrar appointed new family consultant – where mother seeks discharge of Registrar’s orders – where the mother has not complied with rule 8.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) – where the mother’s conduct is not consistent with the overarching purpose – where parties must follow the Rules – application for review by the mother dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 117, 117(2)(A).

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 2.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.04(1), 1.04(2), 8.13, 14.3.

Cases cited:
Cadenet & Behrendt (No. 2) [2021] FamCA 19

Goode v Goode (2006) 206 FLR 212

Padley & Padley [2020] FamCA 717

Division: Division 2 Family Law

Date of hearing: 28 August 2023

Place: Melbourne

Number of paragraphs: 31

Counsel for the Applicant: Mr Givney

Solicitor for the Applicant: Apex Legal

Advocate for the Applicant: Mr Keleher

Solicitor for the Applicant: Keleher Lawyers

Advocate for the Independent Children's Lawyer: Mr Harb

Solicitor for the Independent Children's Lawyer: Harb Lawyers
ORDERS

PAC 6751 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CRIPPS

Applicant

AND:
MS ARAGON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

28 AUGUST 2023

THE COURT ORDERS THAT:
1.The Application for Review filed 10 August 2023 be dismissed.
2.The Orders of 22 August 2023 be discharged.
3.Leave be granted to the Respondent rely on her affidavit filed 26 June 2023.
4.On or before 11 September 2023 at 4:00 pm, the Applicant file and serve any further affidavit he seeks to rely on.
5.The Respondent pay the Applicant’s costs of and incidental to the Hearing on 28 August 2023 and such costs are to be paid in accordance with the scale of costs under Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.

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)…

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 Cripps & Aragon

Details

AGLC: Cripps & Aragon [2023] FedCFamC2F 1253
Case: [2023] FedCFamC2F 1253
Decision Date: 28 August 2023

CaseChat Overview and Summary

Mr Cripps filed an application for review of orders made by a Judicial Registrar concerning their child, who is the subject of family law proceedings. The orders in question involved the appointment of a family consultant to assess the child's needs and make recommendations to the court. Ms Aragon, the child's mother, filed an affidavit before the family consultant interviewed the father, Mr Cripps. The Registrar subsequently appointed a new family consultant due to Ms Aragon's actions, and she sought to have the Registrar's orders discharged. Ms Aragon also did not comply with rule 8.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which requires parties to follow the rules and act in a manner consistent with the overarching purpose of the legislation.

The legal issues before the court were whether Ms Aragon's conduct warranted the discharge of the Registrar's orders and whether her actions were consistent with the overarching purpose of the Family Law Act 1975. The court also needed to determine whether Ms Aragon's application for review should be dismissed due to her non-compliance with the rules. The court considered the effect of Ms Aragon's actions on the proceedings, the importance of following the rules, and the overarching purpose of the Family Law Act 1975.

The court found that Ms Aragon's conduct was not consistent with the overarching purpose of the Family Law Act 1975, as she had filed an affidavit before the family consultant interviewed Mr Cripps, and she did not comply with rule 8.13. The court held that Ms Aragon's actions demonstrated a disregard for the rules and the need for both parties to cooperate in the best interests of the child. The court dismissed Ms Aragon's application for review and discharged the Registrar's orders. The court also ordered that Ms Aragon pay Mr Cripps' costs of and incidental to the hearing.

The court made an order dismissing the application for review and discharging the Registrar's orders. The court also granted leave to the Respondent to rely on her affidavit filed on 26 June 2023 and ordered that the Applicant file and serve any further affidavits by 11 September 2023. The court further ordered that the Respondent pay the Applicant's costs of and incidental to the hearing on 28 August 2023.

Orders

Orders of the court

PAC 6751 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CRIPPS

Applicant

AND:

MS ARAGON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

28 AUGUST 2023

THE COURT ORDERS THAT:

1. The Application for Review filed 10 August 2023 be dismissed.

2. The Orders of 22 August 2023 be discharged.

3. Leave be granted to the Respondent rely on her affidavit filed 26 June 2023.

4. On or before 11 September 2023 at 4:00 pm, the Applicant file and serve any further affidavit he seeks to rely on.

5. The Respondent pay the Applicant’s costs of and incidental to the Hearing on 28 August 2023 and such costs are to be paid in accordance with the scale of costs under Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	PAC 6751 of 2021
Judgment of:	JUDGE BLAKE
Date of judgment:	28 August 2023
Catchwords:	FAMILY LAW – Application for review of orders made by a Judicial Registrar - where family consultant appointed under Court orders – where mother filed an affidavit before the father’s interview – where father had not seen affidavit – where Registrar appointed new family consultant – where mother seeks discharge of Registrar’s orders – where the mother has not complied with rule 8.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) – where the mother’s conduct is not consistent with the overarching purpose – where parties must follow the Rules – application for review by the mother dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 117, 117(2)(A). Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190. Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 2. Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.04(1), 1.04(2), 8.13, 14.3.
Cases cited:	Cadenet & Behrendt (No. 2) [2021] FamCA 19 Goode v Goode (2006) 206 FLR 212 Padley & Padley [2020] FamCA 717
Division:	Division 2 Family Law
Date of hearing:	28 August 2023
Place:	Melbourne
Number of paragraphs:	31
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	Apex Legal
Advocate for the Applicant:	Mr Keleher
Solicitor for the Applicant:	Keleher Lawyers
Advocate for the Independent Children's Lawyer:	Mr Harb
Solicitor for the Independent Children's Lawyer:	Harb Lawyers

PAC 6751 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CRIPPS Applicant
AND:	MS ARAGON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	28 AUGUST 2023