Kemp & Fitton - [2024] FedCFamC2F 1465

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)…

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

Case: [2024] FedCFamC2F 1465
Decision Date: 22 October 2024

CaseChat Overview and Summary

The matter before the court was an application by Ms Kemp to review orders made by a Judicial Registrar concerning parenting arrangements. The father, Mr Fitton, sought to have the final orders set aside and replaced with interim orders only, arguing there had been no agreement that the orders should be final. The Federal Circuit and Family Court of Australia was tasked with determining whether the orders should remain as final or be converted to interim orders.

The central legal issue was whether there was a clear agreement between the parties that the parenting orders should be made final. The court examined the evidence and submissions to ascertain the intentions of the parties at the time the orders were made. Given the father's insistence that there was no agreement for the orders to be final and the lack of clear evidence to the contrary, the court was required to decide if the final orders should be set aside and replaced with interim orders as per the proposal by consent.

Judge Taglieri concluded that there was insufficient evidence to establish that both parties had agreed that the orders should be final. The court found that the father had not been satisfied with the finality of the orders, and the mother's representative had not contested the father's position on this point. Consequently, the court discharged the final orders and made orders in line with the proposed interim orders by consent, which had been signed by the father and agreed upon by the mother's representative.

The court's orders included discharging the final orders made by the Judicial Registrar on 26 June 2024 and making interim orders as per the "Proposed Interim Orders by Consent" document. The proceedings were to remain in the docket of Judge Turner, with the next mention scheduled for 16 December 2024. The form of the order was subject to entry in the Court’s records and potential review for minor errors or variations.

Orders

Orders of the court

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.

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):	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.

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