Kemp & Fitton
[2024] FedCFamC2F 1465
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kemp & Fitton [2024] FedCFamC2F 1465
File number(s): LEC 470 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 22 October 2024 Catchwords: FAMILY LAW – Application for review – review of judicial registrar’s orders making parenting orders by consent on a final basis – father seeks orders be set aside and made as interim orders only – whether there was agreement that the orders be final – not satisfied that there was agreement to orders being final ones – orders discharged and orders made in terms of proposed interim orders by consent signed by the father and agreed by mother’s representative Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254(2)(q)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 14.05, 14.07, 15.06, sch 4, cl 2, item 2.1
Cases cited: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479
Wenceslas & Director-General, Department Of Community Services [2007] FamCA 398
Black’s Law Dictionary (online at 21 October 2024) ‘consent’
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 9 October 2024 Place: Hobart (by MS Teams) Solicitor for the Applicant: Ms Carter, Carter Law The Respondent: In person
Table of Corrections 25 October 2024 In the Catchwords on the cover page, the words “same terms but on an interim basis only” have been replaced with “terms of proposed interim orders by consent signed by the father and agreed by mother’s representative” 25 October 2024 On the Orders page, the number “22” has been replaced with “16” in Notation A. ORDERS
LEC 470 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEMP
Applicant
AND: MR FITTON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Final Orders made by Judicial Registrar Bell on 26 June 2024 are discharged.
2.UNTIL FURTHER ORDER, there be orders, declarations and notations made in terms of the document entitled “Proposed Interim Orders by Consent”, being the document annexed as MF-2 to the Respondent Father’s affidavit filed 28 August 2024.
THE COURT NOTES THAT:
A.The proceedings remain in the docket of Judge Turner and are next listed for mention before Her Honour on 16 December 2024.
B.The Catchwords on the cover page of the Reasons for Judgment and the date in Notation A of the Orders page have been amended pursuant to r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
On 26 June 2024, a Judicial Registrar made Orders purported to be made by consent in these parenting proceedings (“the Orders”). The Orders are expressed to be final ones and provide, amongst other things, for the children to spend time with their father, Mr Fitton (“the father”) but otherwise live with their mother, Ms Kemp (“the mother”). The Orders also provide that the children spend time with the father on alternate weekends.[1]
[1] Order 6 of Orders made 26 June 2024.
On this Application for Review filed 29 August 2024, the father seeks an order that the Judicial Registrar's Orders be set aside and instead that:
(a)The Orders be made as interim orders; and
(b)A further order be made that the children not be left unsupervised in the care of the maternal grandfather.
Prior to hearing the Application for Review on 9 October 2024, I established that the father had also filed an Application in a Proceeding on 28 August 2024 that related to the review application but which had not yet been the subject of any Court Orders.
As the Application for Review had been filed out of time,[2] I heard the parties in respect of the orders sought in the Application in a Proceeding. The mother did not oppose time being extended for the Court to hear the Application for Review. Accordingly, I made Orders pursuant to r 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), extending time to the date the father had filed his Application for Review. I also adjourned the father’s stay application sine die.
[2] Rule 14.05 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I did not make a stay order in respect of the Orders subject to review because the father indicated that he did not oppose the terms of the Orders as a temporary situation,[3] and he intended to comply with them in the interim. In these circumstances, there seemed no utility in granting a stay pending determination of the Application for Review.
[3] Order 6 of Orders made 26 June 2024.
REVIEW PRINCIPLES
As the Application for Review is brought pursuant to Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the hearing of the application is de novo, meaning that I stand in the shoes of the Judicial Registrar who made the parenting Orders on 26 June 2024 and redetermine what, if any, Orders should be made in place of those of the Judicial Registrar.[4]
[4] Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Having made the Order extending time for filing of the Application for Review the Court has jurisdiction to hear and determine it.
THE REVIEW HEARING
The father asked the Court to read his affidavit sworn 28 August 2024[5] and to receive in evidence various documents being:
·An email sent by the father to the mother’s solicitor on 22 April 2024 (Exhibit A2); and
·His Response to Initiating Application dated 15 September 2023 (Exhibit A3).
[5] Exhibit A1.
The father’s affidavit and the documentary evidence relied upon was received in evidence unopposed. The affidavit annexed a transcript of the proceedings before the Judicial Registrar on 26 June 2024.[6]
[6] Exhibit A1, annexure MF-1.
The respondent relied on her affidavit filed 2 October 2024 and it too was read into evidence unopposed.[7]
[7] Exhibit R
The sole issue in these proceedings is whether the Orders made on 26 June 2024 should be interim orders or final orders. Although the father also sought an order in the terms of [2](b) of these reasons, it is unnecessary to consider this aspect of his review because there already is an Order in those terms.[8]
[8] Order 16 of the Orders made 26 June 2024.
THE COMPETING CONTENTIONS
The father stated in evidence and submitted that:
(a)He only ever intended and understood that the orders being made on 26 June 2024 were to be interim ones;
(b)He had signed a document headed “interim consent orders” and agreed to interim orders only;
(c)The hearing before the Judicial Registrar on 26 June 2024 had technical difficulties and he had difficulty hearing and being engaged. He also did not understand some of what occurred; and
(d)He seeks final orders that his time with the children be on an equal shared basis and that has always been his position.
The mother contends that the Judicial Registrar took care in seeking to confirm with the parties that they were agreeable to the terms of the Orders as final orders. Further, it was submitted that the transcript of the proceedings before the Judicial Registrar makes it plain that the father had agreed to the Orders being made on a final basis.
In support of the contention that the father understood the Orders being made were to be final orders, it was submitted that:
(a)The father had saved the minute sent to him by the mother’s solicitor as an “interim minute of order” as a “final orders document”;[9] and
(b)The transcript of the proceedings before the Judicial Registrar shows that:
(i)The father agreed to the orders being made as final orders; and
(ii)The only remaining issues in dispute for determination by the Court was what time the children should spend with the father in Christmas holiday periods and costs should have been reserved.
[9] Mother’s affidavit dated 2 October 2024 at [11]-[14].
CONSENT PRINCIPLES
Whether the parties consented to the terms of the proposed orders as final orders is a question of fact. In making a finding about whether there was consent, it is trite but necessary to give a reminder about the meaning of consent. In Blacks Law Dictionary,[10] “consent” is defined as:
A voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose, esp. given voluntarily by a competent person; legally effective assent.
…
Consent that is clearly and unmistakably stated.
[10] 12th edition (2024).
It is also useful to observe that in the context of parenting matters involving international relocation matters, consent may be express, inferred by conduct or acquiescence.[11] If consent is to be inferred, then the Court must be satisfied that that agreement was real, positive and unequivocal.[12] These principles are equally applicable in the present context.
[11] Wenceslas & Director-General, Department Of Community Services [2007] FamCA 398 at [242].
[12] Wenceslas & Director-General, Department Of Community Services [2007] FamCA 398 at [264].
UNCONTENTIOUS FINDINGS
On the basis of uncontentious, unchallenged or agreed evidence, I find as follows:
(a)The two children who are the subjects of these proceedings are X, born in 2017, and Y, born in 2020 (“the children”).
(b)The children are currently aged six and four years of age.
(c)The mother filed her application seeking final parenting orders on 4 August 2023.
(d)By his Response,[13] the father seeks equal shared time with the children.
(e)On 10 April 2024, the parties attended a Court-based Dispute Resolution Conference and an outcome was recorded that an agreement in principle had been reached in relation to outstanding parenting issues.[14]
(f)The parties had not filed a proposed minute of order by 24 April 2024, when the proceedings were considered in Chambers by another Judicial Registrar. Accordingly, an Order was made preserving a listing before the Judicial Registrar on 26 June 2024.
(g)On 24 April 2024, the mother’s solicitor forwarded a minute of proposed order to the father.[15]
(h)An “updated document” labelled “Final Order by Consent” but headed “Proposed Interim Orders by Consent” was sent to the father by the mother's solicitor by email on 24 April 2024. The precise terms of that updated document are unknown as it is not attached to the mother’s affidavit.[16]
(i)On 25 April 2024, the father sent a PDF document signed and dated 25 April 2024 and labelled “Final orders by consent. [Mr Fitton] 25-4-24” to the mother’s solicitor.[17]
(j)There appeared to be agreement that the document referred to above at [17](i) is the same document which is annexed to the father’s affidavit as MF-2 and headed “Proposed Interim Orders By Consent”. Although the father states at [90] of Exhibit A1 that this document was signed by both parties, there is no evidence before the Court that the mother had signed annexure MF-2. Rather, in oral submissions on 9 October 2024 the mother’s solicitor agreed that the mother had not signed the minute.
(k)On 21 May 2024 the father emailed the mother’s solicitor about the document referred to above at [17](i) and the content of the email indicates that the parties remained in dispute about some issues.[18]
(l)The proceedings came before the Judicial Registrar for a directions hearing on 26 June 2024, which was conducted by MS Teams.
(m)The transcript annexed to the father’s affidavit as MF-1 is a true record of what was said and what occurred before the Judicial Registrar on 26 June 2024.
[13] Exhibit A3.
[14] Notation A to the Orders dated 10 April 2024.
[15] Mother’s affidavit filed 2 October 2024 at [11] but noting that the contents of the letter is unknown because what purports to be that letter at annexure A to the affidavit is not a letter dated 24 April 2024.
[16] Mother’s affidavit filed 2 October 2024 at [12].
[17] Mother’s affidavit filed 2 October 2024 at [13].
[18] Mother’s affidavit filed 2 October 2024 at Annexure B.
FINDINGS BASED ON FACTS AND ISSUES IN APPARENT DISPUTE
The father asserts that the mother’s solicitor provided the document he annexes as MF-2 to the Judicial Registrar on 26 June 2024 and I accept that to be the case and this is consistent with what the mother states at [15] of her affidavit. As noted above at [17](j) of these reasons, I also do not accept the document was signed by the mother as there is no evidence of that being the case.
The transcript of the hearing on 26 June 2024 speaks for itself as to what was said and how the proceedings were conducted before the Judicial Registrar. It is the best evidence of what occurred during the hearing and what the parties agreed or otherwise.
Having considered the transcript I find as follows:
(a)On a number of occasions more than one proposition was put to the father at a time.
(b)The father did convey that he did not understand what the Judicial Registrar was intending to do.
(c)The parties remained in disagreement about costs and I accept that the father did not understand the effect of not pronouncing an order in the terms of [28] of annexure MF‑2, being the proposed interim orders by consent.[19]
[19] Being annexure MF-2 to Exhibit A1.
(d)The father was seeking half of all school holidays, including the Christmas holidays, and the exchange is ambiguous about whether he agreed that the word “term” be inserted in [8] of annexure MF-2. This is because he replied “no” to the question of whether he had issue if the word “term” was included but he then went onto say something else which likely qualified his agreement as he maintained that the Christmas period was still a holiday period and the Registrar agreed.[20] The father later stating “okay” in this context was ambiguous and not necessarily confirming agreement to include the word “term” in the minute.[21]
(e)The mother’s solicitor sought deletion of [28] of annexure MF-2, which the father had signed, and I infer he was not present when the Judicial Registrar stated “[s]o my understanding was, though, if I make these orders, they’re final orders”[22] because she then added “I will just wait for [Mr Fitton] to come back.”
(f)The mother’s solicitor confirmed that the only issue outstanding on a final basis was Christmas holiday time but I do not accept the father did so because the balance of the transcript demonstrates his disagreement about removing [28] of annexure MF-2 before requesting a break and stating he did not understand.[23]
(g)The Judicial Registrar wanted to make the orders by consent on a final basis and the father responded by stating he wanted legal advice and needed clarification.[24]
(h)After having case management processes explained, the father appeared to acquiesce to deleting [28] from annexure MF-2 but then said “I would like the orders in writing, please, so I can get advice on that matter.”[25]
(i)The Judicial Registrar indicated she would send a minute to the father so he could get legal advice and the father responded by stating: “[i]f we get an understanding about it, we [sic] be able to finalise and come to an agreement – an initial agreement, about Christmas holidays today?”[26] (emphasis added)
(j)The Judicial Registrar purported to further explain what she wanted to do and as the father sought to raise a question,[27] technical issues again ensued and the proceedings adjourned at 12:08pm before resuming again at 12:25pm.[28]
(k)On resuming the listing, the father clearly stated he did not agree to pay any of the mother’s costs now or in the future and put a further proposal. Further discussion ensued as to what was and wasn’t agreed.[29] Further, the father raised an issue about travel expenses and the Judicial Registrar intervened and again sought to clarify what she proposed to do by referring the Christmas holiday dispute to a Judge.
(l)The father again made statements indicative of negotiation, which is not reflective of agreement with the amendments to the minute being proposed by the mother and seemingly agreed to by the Judicial Registrar, nor that he agreed final orders should be made.
(m)After indicating that the Judicial Registrar did not have capacity in her list to keep dealing with the matter, she stated she would refer the matter to a Judge and announced “[s]o I have made the final orders”.[30] Even after this, the father was seeking to communicate with a duty lawyer.
[20] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 from p 3, line 25 to p 4 lines 1-4.
[21] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 from p 3, line 25 to p 7 lines 30-43.
[22] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 4, lines 13-14.
[23] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at pp 5-6.
[24] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 7.
[25] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at pp 7-8.
[26] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 9.
[27] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 9, line 29.
[28] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at pp 9-10.
[29] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 10.
[30] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 13.
ASSESSMENT AND DETERMINATION
It is often burdensome for judicial officers to conduct proceedings involving self-represented litigants, no less because of their unfamiliarity with court processes and the law. Regardless, the Court has a duty to provide practical assistance to self-represented litigants. The duty is helpfully summarised and enunciated by the Full Court of the Federal Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd[31] at [52] to [56].
[31] [2020] FCAFC 138; 280 FCR 479.
I accept the Judicial Registrar was challenged by demands in her list and the burden of a self‑represented litigant unaccustomed with procedure and law, but the findings above demonstrate that the father only ever agreed to the terms of the document he signed, annexure MF-2, as interim orders.
The contents of the transcript evidences anything but an unequivocal meeting of the minds or consensus about the terms of the minute at annexure MF-2 in its entirety. It cannot be said that the father agreed to the terms of the Orders pronounced as final orders. The evidence does not permit a finding to this effect in my view.
In my view, the transcript makes it plain that there are at least two aspects of the Orders which the Judicial Registrar pronounced to be final that the father did not agree with and further that he was seeking to negotiate other terms and orders for the Court to make.
I do not accept the proposition that the father agreed that the Orders be final for three reasons. First, he did not agree to the costs paragraph being removed or the word “term” be deleted from what he recorded his consent to by signing the document headed “Proposed Interim Orders by Consent”.[32] Secondly, he expressly stated that his agreement was to “an initial agreement”.[33] Thirdly, it was apparent the father was seeking other orders, including about travel and upcoming Christmas holidays and wanted to seek a duty lawyer’s advice. Despite these matters, the Judicial Registrar pronounced final Orders in different terms to those that he had signed.
[32] Annexure MF-2 to Exhibit A1.
[33] Annexure MF-1 to Exhibit A1, transcript dated 26 June 2024 at p 9.
I also infer that the mother’s solicitor initially anticipated that only interim orders would be made at the directions hearing, not final ones. This is a reasonable inference based on the solicitor’s statement at lines 9-11 of page 4 of the transcript.
A Judicial Registrar has power to make orders where their terms have been agreed by all the parties to a proceeding.[34] But my findings are to the effect that the father did not agree to either final or interim orders in the terms made by the Judicial Registrar.
[34] Section 254(2)(q) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Schedule 4, clause 2, item 2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
He did agree to interim orders in the terms of the minute annexed to his affidavit as MF-2. He now asks the Court on this review to discharge the final Orders made 26 June 2024 and instead make interim orders in accordance with annexure MF-2.
As the Judicial Registrar did not have power to make the final Orders due to the disagreement about the terms of the minute submitted to her, those Orders should be discharged. Further, because the father agrees to interim orders in the terms of annexure MF-2 it is my view, in the interests of the children, that those orders be made as interim orders. However, there is no evidence before the Court that the mother agrees to the terms of that minute in its entirety as interim orders.
Accordingly, I will hear from the solicitor for the mother, before formally making orders on the Application for Review.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 October 2024
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