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:

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.
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…

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: Dyne & Dyne [2021] FedCFamC1F 96
Case: [2021] FedCFamC1F 96
Decision Date

CaseChat Overview and Summary

The matter of Dyne and Dyne was before Austin J in the Federal Circuit and Family Court of Australia. The case involved an application for review of the decision of the Registrar to list an interim parenting dispute for hearing three weeks after it was filed. The mother sought an earlier hearing date for the interim parenting dispute, while the father sought to maintain the existing hearing date and proposed substantive interim parenting orders at the review hearing.

The legal issues before the court were whether the interim hearing should be brought forward and what the appropriate hearing date should be for the pending interim parenting dispute. The court was required to determine if any reason existed to persuade that the hearing should be brought forward from the date set by the Registrar.

In dismissing the application for review, the court held that the parties' approach to the review application was misconceived. The purpose of the review application was solely to determine the appropriate hearing date for the pending interim parenting dispute. The court found that no reason had been advanced by the mother to persuade that the hearing fixed on 14 October 2021 should be brought forward. Additionally, the parties informed the court that a Child Inclusive Assessment would be performed by a Family Consultant, and they expected the report flowing from that assessment would be available shortly before the hearing on 14 October 2021.

The court dismissed the application for review filed on 24 September 2021, and the interim hearing remained listed for 14 October 2021. The court found that the parties' approach to the review application was misconceived and that no reason had been advanced to persuade that the hearing should be brought forward. The court also noted that the Child Inclusive Assessment report would likely have some bearing on the outcome of the dispute between the parties.

Orders