Foys & Laidler - [2021] FedCFamC2F 364

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Foys & Laidler [2021] FedCFamC2F 364

File number(s): LNC 667 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 12 November 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – procedural orders and case management - Child Impact Report – Application for Review dismissed.

Legislation:
Family Law Act 1975, s 60CC(3)

Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 4, ss 132, 254, 66, 267, 270

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth), r 5

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth)

Federal Circuit and Family Court (Division 2)(Family Law) Rules 2021, r 5.01

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), Part 1 Division 1.2.1, Schedule 4 Clause 2, rr 1.04, 1.31. 1.33, 2.34, 5.01, 14.05(2), 14.07, 14.3

Cases cited:
H & W (1995) FLC 92-588

Lombardi & Rider [2021] FedCFamC2F 57

Marsden & Winch [2009] FamCAFC 152

Prewett & Mann [2013] FamCAFC 130

Rice and Asplund (1978) 6 FamLR 570

Division: Division 2 Family Law

Number of paragraphs: 46

Date of hearing: 4 November 2021

Place: Hobart

Counsel for the Applicant: Mr C Othen

Solicitor for the Applicant: Felicio Law Firm

Counsel for the Respondent: Ms G Gibson
ORDERS

LNC 667 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FOYS

Applicant

AND:
MR LAIDLER
Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

12 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Application for Review filed 19 October 2021 is dismissed.
2.Order 1 of the Orders made 4 November 2021 is discharged effective from 9:00am on 16 November 2021 and the father has leave to be heard at short notice in respect of this order.

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 Foys & Laidler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION

These parenting proceedings relate to the parties’ children X born in 2007 and Y born in 2009 (collectively “the children”). The proceedings were commenced on 10 August 2021, when the mother Ms Foys (“the mother”) filed an Initiating Application seeking orders to discharge final…

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 Foys & Laidler

Details

AGLC: Foys & Laidler [2021] FedCFamC2F 364
Case: [2021] FedCFamC2F 364
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Foys sought a review of a Judicial Registrar’s decision concerning the procedural orders and case management of a family law matter. The dispute involved the father's ability to be heard at short notice and the discharge of a procedural order concerning a Child Impact Report. The case was heard by Judge Tagliari, who was tasked with determining whether the application for review should be granted and whether the procedural orders should be modified.

The central legal issues before the court were whether the application for review was justified and whether the procedural orders should be discharged or modified. Specifically, the court needed to consider whether the Judicial Registrar had erred in making the procedural orders and whether the father's right to be heard at short notice had been appropriately balanced against other considerations.

Judge Tagliari dismissed the application for review, concluding that the Judicial Registrar had not erred in making the procedural orders. The court found that the Judicial Registrar had appropriately balanced the interests of the parties, including the need for timely resolution of the case and the importance of the father being heard. The court also determined that discharging Order 1 of the Orders made on 4 November 2021 was appropriate, effective from 9:00am on 16 November 2021, and granted the father leave to be heard at short notice in respect of this order. The form of the order was subject to entry in the Court’s records and could be reviewed to correct minor errors or to record variations.

Orders

Orders of the court

LNC 667 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS FOYS

Applicant

AND:

MR LAIDLER

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

12 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The Application for Review filed 19 October 2021 is dismissed.

2. Order 1 of the Orders made 4 November 2021 is discharged effective from 9:00am on 16 November 2021 and the father has leave to be heard at short notice in respect of this order.

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(s):	LNC 667 of 2021
Judgment of:	JUDGE TAGLIERI
Date of judgment:	12 November 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – procedural orders and case management - Child Impact Report – Application for Review dismissed.
Legislation:	Family Law Act 1975, s 60CC(3) Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 4, ss 132, 254, 66, 267, 270 Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth), r 5 Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) Federal Circuit and Family Court (Division 2)(Family Law) Rules 2021, r 5.01 Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), Part 1 Division 1.2.1, Schedule 4 Clause 2, rr 1.04, 1.31. 1.33, 2.34, 5.01, 14.05(2), 14.07, 14.3
Cases cited:	H & W (1995) FLC 92-588 Lombardi & Rider [2021] FedCFamC2F 57 Marsden & Winch [2009] FamCAFC 152 Prewett & Mann [2013] FamCAFC 130 Rice and Asplund (1978) 6 FamLR 570
Division:	Division 2 Family Law
Number of paragraphs:	46
Date of hearing:	4 November 2021
Place:	Hobart
Counsel for the Applicant:	Mr C Othen
Solicitor for the Applicant:	Felicio Law Firm
Counsel for the Respondent:	Ms G Gibson

LNC 667 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS FOYS Applicant
AND:	MR LAIDLER Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	12 NOVEMBER 2021