FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lester & Lester [2024] FedCFamC2F 1012
File number(s): ADC 4475 of 2023 Judgment of: JUDGE PARKER Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – PROPERTY – Leave to institute proceedings out of time – Prima facie case not established – Hardship not established – leave refused Legislation: Family Law Act 1975 (Cth) ss 44, 60I, 72, 74, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 4.01
Cases cited: Althaus & Althaus [1979] FamCA 47; (1982) FLC ¶91-233
Arcand & Boen [2021] FamCAFC 155; (2021) FLC ¶94-046
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC ¶93-752
Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93–847
Gadzen & Simkin [2018] FamCAFC 218; (2018) FLC ¶93-871
Hall & Hall [1979] FamCA 50; (1979) FLC ¶90-679
Lambertson & Lambertson [2021] FamCAFC 48; (2021) FLC ¶94-012
McDonald & McDonald [1977] FamCA 93; (1977) FLC ¶90–317
Skelton & Lindop [2022] FedCFamC1A 47
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108
Whitford & Whitford [1979] FamCA 3; (1979) FLC ¶90-612
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 12 July 2024 Place: Adelaide Counsel for the Applicant: Self-Represented Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Eastern Legal ORDERS
ADC 4475 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LESTER
Applicant
AND: MS LESTER
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
Parenting
1.The Respondent’s application for summary dismissal with respect to parenting matters is dismissed.
2.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X, born in 2018 (the child) are directed to attend with a Court Child Expert (practising under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 16 December 2024, with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide on the morning of 17 December 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
3.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
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- Lester & Lester [2024] FedCFamC2F 1012
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- [2024] FedCFamC2F 1012
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CaseChat Overview and Summary
The court considered the evidence and submissions from both parties. Regarding the financial proceedings, the court found that Mr. Lester had not established a prima facie case for leave to bring proceedings out of time, nor had he demonstrated the necessary hardship to warrant such leave. Consequently, the application for leave was refused, and all extant financial applications were dismissed. For the parenting matters, the court dismissed Ms. Lester's application for summary dismissal. The court directed the parties and the child to attend a meeting with a Court Child Expert to prepare a Child Impact Report, outlining any agreements, key issues, the child's views, and the impact of the dispute on the child. The report must be submitted to the court and released to the parties. Additionally, Mr. Lester was required to file an amended initiating application detailing the final and interim orders sought regarding parenting.
The court's orders included dismissing the respondent's application for summary dismissal concerning parenting matters, directing the parties and child to attend a meeting with a Court Child Expert, and setting out the requirements for the Child Impact Report. The court also mandated that Mr. Lester file an amended initiating application for parenting matters and adjourned all extant interim parenting applications for an interim hearing. Finally, the court refused Mr. Lester's application for leave to bring financial proceedings out of time and dismissed all extant financial applications.
Orders
Orders of the court
ADC 4475 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LESTER
Applicant
AND:
MS LESTER
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
Parenting
1. The Respondent’s application for summary dismissal with respect to parenting matters is dismissed.
2. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X, born in 2018 (the child) are directed to attend with a Court Child Expert (practising under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 16 December 2024, with:
(a) the Applicant to attend at 9.00am; and
(b) the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide on the morning of 17 December 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
3. Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4. The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
5. Not later than seven (7) days from the date of these orders the parties must provide their contact telephone numbers and email addresses to …@...
6. Pursuant to orders herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a) any agreement reached between the parties;
(b) identification of key issues requiring resolution;
(c) any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d) the impact of the issues/dispute before the Court;
(e) any other matters that the Court Child Expert considers important to the welfare
7. Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
8. The Court Child Expert will be at liberty to inspect any material filed by the parties, and any material produced pursuant to section 67ZBD and 67ZBE order.
9. The Father is to file and serve an amended Initiating Application setting out with precision the final and interim orders sought by him with respect to parenting no later than 4.00pm on 1 November 2024.
10. All extant interim parenting applications are adjourned for interim hearing before a Senior Judicial Registrar on 23 December 2024 at 11.30am.
Property
11. The Husband’s application pursuant to section 44(3) of the Family Law Act 1975 (Cth) for leave to bring a financial proceeding out of time is refused.
12. All extant applications with respect to financial matters are dismissed.
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
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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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