FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hess & Forsyth [2024] FedCFamC2F 251
File number(s): ROC 1175 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 28 February 2024 Catchwords: FAMILY LAW – REVIEW – procedural – Applicant Father seeks an injunction to prevent the Mother from relocating to an area some 5 hours away – the Deputy Registrar has moved the first return date to May to enable the parties to attend mediation and the Father wants the date brought forward to March – whether that decision is reviewable – whether the Father should be able to bring his application without first receiving a s60I certificate. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Myers & Myers [2011] FMCAfam 1104 Division: Division 2 Family Law Number of paragraphs: 31 Date of last submission/s: 22 February 2024 Date of hearing: 19 February 2024 Place: Launceston via Ms Teams Counsel for the Applicant: Ms Phelan Solicitor for the Applicant: Phelan Family Law Counsel for the Respondent: Mr Collins Solicitor for the Respondent: South Geldard Lawyers ORDERS
ROC 1175 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HESS
Applicant
AND: MS FORSYTH
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Review filed 13 February 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
This is an Application for Review filed by Mr Hess (‘the Father’). The Father seeks to Review Orders of the Deputy Registrar of 9 February 2024 which in essence:
(a)Referred the parties back to mediation because the Father filed his application before obtaining a s60I certificate; and
(b)Allocated 24 May 2024 as a mention date rather than its original listing date of 21 March 2024.
The Review is opposed by Ms Forsyth (‘the Mother’).
Background
On 22 November 2022, the parties entered final consent orders (‘the Orders’) concerning their child X born 2021. The Orders in essence provide:
(a)The parties have equal shared parental responsibility;
(b)X lives primarily with the Mother;
(c)The Father spends time with X each week, building overtime through various stages until eventually it…
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- Case
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CaseChat Overview and Summary
The court had to determine whether the decision of the Deputy Registrar to move the return date was reviewable and whether Mr Hess was required to obtain a s60I certificate before the court could hear his application. The court held that the decision to move the return date was not reviewable as it did not constitute an error of law but rather was a matter of judicial discretion and procedure. Further, the court held that Mr Hess was required to obtain a s60I certificate before his application could proceed, as it was necessary to satisfy jurisdictional requirements before the court could hear an application involving a child.
The court dismissed the application for judicial review and ordered that the review be dismissed. The court noted that the requirement of a s60I certificate was a jurisdictional prerequisite that could not be circumvented and that the Deputy Registrar's decision to move the return date was not an error of law. As such, the court held that the application for review was not well founded in law and ought to be dismissed.
Orders
Orders of the court
ROC 1175 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HESS
Applicant
AND:
MS FORSYTH
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The Review filed 13 February 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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