Laidler & Pallister - [2024] FedCFamC2F 507

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laidler & Pallister [2024] FedCFamC2F 507

File number(s): BRC 6243 of 2023

Judgment of: JUDGE MURDOCH

Date of judgment: 23 April 2024

Catchwords: FAMILY LAW – PARENTING – Ex-Tempore Reasons for Judgment - Application for Review filed by the Independent Children’s Lawyer – Where orders made by a Senior Judicial Registrar were beyond the scope of the powers conferred in section 67ZC of the Act – where it is unclear what head of power is relied upon to ground such orders being made – Where the father seeks to reagitate such interim orders by way of a further Application in a Proceeding – Where no material change in circumstances is demonstrated by the father – Interim orders the subject of the Review Application discharged – Review Application otherwise dismissed – Application in a Proceeding filed by the father dismissed.

Legislation:
Family Law Act 1975 (Cth) s 67ZC.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.

Federal Circuit and Family Court of Australia, Central Practice Directions, Family Law Case Management, (2021) 5.21, 5.22.

Cases cited:
Edwards v Edwards [2006] FamCA 1230

Marsden v Winch [2009] FamCAFC 152

Poisat & Poisat [2014] FamCAFC 128

Rice v Asplund (1979) FLC 90 – 725

Rikki & Rikki [2023] FedCFamC1F 1003

Division: Division 2 Family Law

Number of paragraphs: 28

Date of hearing: 23 April 2024

Place: Sydney

Solicitor for the Applicant: Litigant in Person

Solicitor for the First Respondent: Litigant in Person

Solicitor for the Second Respondent: Litigant in Person, did not participate

Solicitor for the Independent Children’s Lawyer Ms Keyworth, Keyworth Harris & Love Family Lawyers

ORDERS

BRC 6243 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR LAIDLER
Applicant

AND:
MS PALLISTER
First Respondent

MS PALLISTER
Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

23 APRIL 2024

BY CONSENT THE COURT ORDERS THAT:
1.The second respondent Maternal Grandmother is removed as a party to the proceedings.
2.Orders 11, 28, 29, 30 and 31 made on 13 March 2024 are discharged.

THE COURT ORDERS THAT:
3.The Application for Review filed by the Independent Children’s Lawyer on 2 April 2024 is otherwise dismissed.
4.The Application in a Proceeding filed by the Father on 11 April 2024 is dismissed.

THE COURT NOTES THAT:
A.There was no appearance on behalf of the second respondent when their appearance was called at 10:03am.
B.The mother did not appear at court until after 10:20am this morning. She has been reminded that in the event she does not appear in court at the listing time at future court events the matter may proceed in her absence.

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…

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 Laidler & Pallister

Details

AGLC: Laidler & Pallister [2024] FedCFamC2F 507
Case: [2024] FedCFamC2F 507
Decision Date: 23 April 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) dealt with an application for review and an application in a proceeding in the matter of Laidler & Pallister. The applicant, Mr Laidler, sought to challenge interim parenting orders made by a Senior Judicial Registrar. The orders were subject to a review application filed by the Independent Children’s Lawyer, who contended that the orders exceeded the powers granted under section 67ZC of the Family Law Act 1975. The court was required to determine whether the interim orders were valid and, if not, whether there had been a material change in circumstances warranting a reapplication by Mr Laidler.

The court examined the basis of the orders and found that the Senior Judicial Registrar did not clearly articulate the legal authority underpinning the interim orders. Consequently, the court concluded that the orders were beyond the scope of the powers conferred by section 67ZC. The court also considered Mr Laidler’s application in a proceeding, seeking to reinstate the interim orders. It found that there was no evidence of a material change in circumstances since the original orders were made. Therefore, the court dismissed the application in a proceeding. The court discharged the contested interim orders and dismissed the review application, with no orders made in respect of the second respondent, the maternal grandmother, who did not appear in court.

The court ordered that the second respondent, the maternal grandmother, be removed as a party to the proceedings. The contested interim orders made on 13 March 2024 were discharged. The review application filed by the Independent Children’s Lawyer on 2 April 2024 was dismissed, and the application in a proceeding filed by Mr Laidler on 11 April 2024 was also dismissed. The court noted the absence of the maternal grandmother at the proceedings and reminded the mother of the importance of appearing on time for future court events.

Orders

Orders of the court

BRC 6243 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LAIDLER

Applicant

AND:

MS PALLISTER

First Respondent

MS PALLISTER

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

23 APRIL 2024

BY CONSENT THE COURT ORDERS THAT:

1. The second respondent Maternal Grandmother is removed as a party to the proceedings.

2. Orders 11, 28, 29, 30 and 31 made on 13 March 2024 are discharged.

THE COURT ORDERS THAT:

3. The Application for Review filed by the Independent Children’s Lawyer on 2 April 2024 is otherwise dismissed.

4. The Application in a Proceeding filed by the Father on 11 April 2024 is dismissed.

THE COURT NOTES THAT:

A. There was no appearance on behalf of the second respondent when their appearance was called at 10:03am.

B. The mother did not appear at court until after 10:20am this morning. She has been reminded that in the event she does not appear in court at the listing time at future court events the matter may proceed in her absence.

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

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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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File number(s):	BRC 6243 of 2023
Judgment of:	JUDGE MURDOCH
Date of judgment:	23 April 2024
Catchwords:	FAMILY LAW – PARENTING – Ex-Tempore Reasons for Judgment - Application for Review filed by the Independent Children’s Lawyer – Where orders made by a Senior Judicial Registrar were beyond the scope of the powers conferred in section 67ZC of the Act – where it is unclear what head of power is relied upon to ground such orders being made – Where the father seeks to reagitate such interim orders by way of a further Application in a Proceeding – Where no material change in circumstances is demonstrated by the father – Interim orders the subject of the Review Application discharged – Review Application otherwise dismissed – Application in a Proceeding filed by the father dismissed.
Legislation:	Family Law Act 1975 (Cth) s 67ZC. Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190. Federal Circuit and Family Court of Australia, Central Practice Directions, Family Law Case Management, (2021) 5.21, 5.22.
Cases cited:	Edwards v Edwards [2006] FamCA 1230 Marsden v Winch [2009] FamCAFC 152 Poisat & Poisat [2014] FamCAFC 128 Rice v Asplund (1979) FLC 90 – 725 Rikki & Rikki [2023] FedCFamC1F 1003
Division:	Division 2 Family Law
Number of paragraphs:	28
Date of hearing:	23 April 2024
Place:	Sydney
Solicitor for the Applicant:	Litigant in Person
Solicitor for the First Respondent:	Litigant in Person
Solicitor for the Second Respondent:	Litigant in Person, did not participate
Solicitor for the Independent Children’s Lawyer	Ms Keyworth, Keyworth Harris & Love Family Lawyers

BRC 6243 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR LAIDLER Applicant
AND:	MS PALLISTER First Respondent MS PALLISTER Second Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	23 APRIL 2024