Dyne & Dyne

[2021] FedCFamC1F 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dyne & Dyne [2021] FedCFamC1F 96

File number(s):	SYC 5928 of 2020
Judgment of:	AUSTIN J
Date of judgment:	29 September 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the Registrar listed the interim parenting dispute for hearing little more than three weeks after it was filed – Where the applicant seeks a review of the decision to list the interim hearing – Where the applicant seeks to maintain the existing interlocutory hearing and seek more interim orders pending that hearing – Where the respondent also seeks to maintain the interlocutory hearing and proposes substantive interim parenting orders at the review hearing – Where the parties’ approach to the review application is misconceived – Where the single purpose of the review application is to determine the appropriate hearing date for the pending interim dispute – Where the applicant failed to advance any reason to warrant the hearing being brought forward – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII
Division:	Division 1 First Instance
Number of paragraphs:	13
Date of hearing:	29 September 2021
Place:	Newcastle
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	York Law Family Law Specialists
Counsel for the Respondent:	Ms La Cava
Solicitor for the Respondent:	Doolan Wagner Family Lawyers
Solicitor for the Independent Children's Lawyer:	Phillip A Wilkins & Associates

ORDERS

SYC 5928 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DYNE

Applicant

AND:

MR DYNE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	29 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The Application for Review filed on 24 September 2021 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 the pseudonyms Dyne & Dyne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

AUSTIN J:

1. In July 2020, the parties to the proceedings commendably agreed upon a parenting plan for their four children. They agreed the children should live with the mother and spend substantial amounts of time with the father.

2. The mother commenced proceedings between the parties in August 2020 seeking property settlement orders under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). However, the litigious dispute expanded to include an application for parenting relief under Pt VII of the Act in March 2021. No interim parenting orders have yet been made between the parties.

3. Apparently, two of the four children were withheld by the father on or about 17 September 2021 and now the mother is withholding the other two children from the father.

4. On 21 September 2021, the mother filed an Application in a Case seeking orders for the children to live with her and for a recovery order to issue, enabling recovery of the two eldest children who are presently with the father.

5. The registrar notified the mother that her Application in a Case was listed for hearing on 14 October 2021 – that is, little more than three weeks after it was filed. The father has since filed a Response to the Application in a Case to contest the mother’s application and it too is listed for hearing at the same time on the same date.

6. On 22 September 2021, the mother filed an Application for Review seeking review of the registrar’s decision to list the interim hearing on 14 October 2021. She wants the hearing listed on an earlier date.

7. The review application is listed for hearing before me today (29 September 2021). The only decision to make is whether the interim hearing should remain listed on 14 October 2021 or be brought forward to some other date within the next 14 days.

8. It may be that two of the children are presently in the father’s primary care, contrary to the terms of the parenting plan agreed in July 2020, but that of itself does not demonstrate how the competing interim parenting applications deserve more urgent attention than they are already being given. The mother’s application for the recovery order to urgently issues, restoring the two eldest children to her primary care, pre-supposes she will enjoy success with her application for interim parenting orders, which assumption is not available. At this point in time, both parties have parental responsibility for the children and each contests the nature of the parenting arrangement which will best promote their children’s interests. That issue is best determined before recovery orders are considered.

9. The mother’s approach to this review application is misconceived. By advertence to the contents of the Case Outline document she filed yesterday in readiness for today’s hearing, she apparently now wants to maintain the existing interlocutory hearing on 14 October 2021, but to supplement it with another hearing today over the interim parenting orders which will operate until the next hearing on 14 October 2021. She seeks orders today for the children to be recovered from the father, for them to live with her, and for them to only communicate (but not spend time) with the father.

10. Regrettably, the same misconception befalls the father. In the Case Outline document he filed as recently as 8.57 am this morning, he proposes substantive interim parenting orders be made which will apply until the hearing he wishes to retain on 14 October 2021.

11. The review application has only one purpose – to determine the appropriate hearing date for the pending interim parenting dispute. The order made by the Registrar fixing the hearing on 14 October 2021 is the solitary decision under review.

12. No reason has been advanced by the mother to persuade that the hearing fixed on 14 October 2021 should be brought forward. As an additional consideration, I am informed by the parties that a Child Inclusive Assessment will be performed by a Family Consultant and they expect the report flowing from that assessment will be available shortly before the hearing on 14 October 2021. It is likely the contents of that report will have some bearing upon the outcome of the dispute between the parties.

13. For those reasons, the Application for Review filed on 24 September 2021 is dismissed. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       5 October 2021