Miner & Miner

Case [2023] FedCFamC2F 1463


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Miner & Miner [2023] FedCFamC2F 1463

File number(s): SYC 8849 of 2023
Judgment of: JUDGE MURDOCH
Date of judgment: 16 November 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a Registrar’s decision not to urgently list –Application heard in Chambers - Application upheld.
Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18(2), 14.05, 14.07(2)’

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021.

Cases cited:

Canvin & Jesney [2021] FedCFamC2F 145

Lombardi & Rider [2021] FedCFamC2F 57

Myers & Myers [2011] FMCAfam 1104.

Division: Division 2 Family Law
Number of paragraphs: 18
Date of hearing: In chambers on 16 November 2023
Place: Sydney
Solicitor for the Applicant:  York Law Family Law Specialists
Solicitor for the Respondent:  Sydney Law Group Pty Ltd
Table of Corrections
17 November 2023 In Order 3(b) the words “4:00pm 10 days prior to the interim hearing” have been replaced with “2:00pm on 21 November 2023.
17 November 2023 In Order 4 the words “7 days prior to the interim hearing” has been replaced with “on 21 November 2023”

ORDERS

SYC 8849 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MINER

Applicant

AND:

MS MINER

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

16 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Application for Review filed on 10 November 2023 is upheld.

2.The Application in a Proceeding filed by the Applicant Father on 10 November 2023 is listed for interim hearing at 10:00 am on 22 November 2023. 

3.With respect to Affidavits relied upon for the purposes of the interim hearing: -

(a)only one Affidavit will be read for each witness, including the parties;

(b)all Affidavits are to be filed and served by no later than 4:00pm 10 days prior to the interim hearing 2:00pm on 21 November 2023;

(c)an Affidavit must be no longer than 10 pages in length and contain no more than 5 annexures;

(d)Affidavits are to comply with rule 2.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);

(e)no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these Directions without leave of the Court.

4.Each party is to file and serve by no later than 7 days prior to the interim hearing   4:00pm on 21 November 2023 an Outline of Case Document (Interim Hearing) of no more than 5 pages.  Such Case Outline will include: -

(a)a Minute of the Orders sought noting that the Court has not granted leave to the parties to substantially amend the Orders sought by them in their Application in a Proceeding or Response to such Application;

(b)a chronology listing significant events;

(c)a list of documents sought to be relied upon at the interim hearing;

(d)a brief summary of argument; and

(e)any relevant case law.

5.Outline of Case Documents…

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Miner & Miner [2023] FedCFamC2F 1463
Case
[2023] FedCFamC2F 1463
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application from Mr Miner seeking a review of the Registrar's decision not to urgently list his application concerning the care and custody of the parties' children. The application was heard in chambers, and the Court upheld the application for review, ordering the interim hearing of the original application to be listed. The case involves the care, welfare, and protection of the parties' children, and Mr Miner sought an urgent review of the decision to not list his application for interim care and custody of the children.

The legal issues that the Court was required to decide included whether the application for review should be upheld and if so, what directions should be given in relation to the interim hearing of the original application. The Court considered the urgency of the matter, the impact on the children, and the need for a prompt resolution of the dispute. The Court also considered the procedural fairness of the Registrar's decision and whether the application for review was an appropriate means of addressing any perceived unfairness.

The Court found that the application for review was justified, and the original application for interim care and custody should be listed for an interim hearing. The Court provided detailed directions for the conduct of the interim hearing, including the number of affidavits to be read, the length and content of affidavits, the requirement for an outline of case document, and the production of documents and exhibits. The Court also made orders in relation to the production of restricted documents and the handling of such documents by legal representatives. The Court noted that the orders were subject to amendment and review under the relevant rules of court.

The Court ordered that the application for review be upheld, and the original application for interim care and custody be listed for an interim hearing. The Court also provided detailed directions for the conduct of the interim hearing, including the number of affidavits to be read, the length and content of affidavits, the requirement for an outline of case document, and the production of documents and exhibits. The Court made orders in relation to the production of restricted documents and the handling of such documents by legal representatives. The Court noted that the orders were subject to amendment and review under the relevant rules of court.

Orders

Orders of the court

SYC 8849 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MINER

Applicant

AND:

MS MINER

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

16 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Application for Review filed on 10 November 2023 is upheld.

2. The Application in a Proceeding filed by the Applicant Father on 10 November 2023 is listed for interim hearing at 10:00 am on 22 November 2023.

3. With respect to Affidavits relied upon for the purposes of the interim hearing: -

(a) only one Affidavit will be read for each witness, including the parties;

(b) all Affidavits are to be filed and served by no later than 4:00pm 10 days prior to the interim hearing 2:00pm on 21 November 2023;

(c) an Affidavit must be no longer than 10 pages in length and contain no more than 5 annexures;

(d) Affidavits are to comply with rule 2.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);

(e) no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these Directions without leave of the Court.

4. Each party is to file and serve by no later than 7 days prior to the interim hearing 4:00pm on 21 November 2023 an Outline of Case Document (Interim Hearing) of no more than 5 pages. Such Case Outline will include: -

(a) a Minute of the Orders sought noting that the Court has not granted leave to the parties to substantially amend the Orders sought by them in their Application in a Proceeding or Response to such Application;

(b) a chronology listing significant events;

(c) a list of documents sought to be relied upon at the interim hearing;

(d) a brief summary of argument; and

(e) any relevant case law.

5. Outline of Case Documents will not be received by email by the Associate.

6. Parties are to ensure that any material produced under subpoena is inspected prior to the interim hearing.

7. If the Interim Hearing is to be conducted by way of web conference then:

(a) by no later than 48 hours prior the Interim Hearing the parties are to forward by email to the chambers of the Senior Judicial Registrar with each party copied in, any proposed joint tender bundle sought to be relied upon and:

(b) any documents contained within the tender bundle will not form part of the evidence until actually tendered at the hearing;

(c) any proposed tender bundle must be both indexed and consecutively paginated;

(d) such tender bundle is to be no more than 30 pages; and

(e) tender bundles that do not comply with these directions will be rejected and be unable to be relied upon at the hearing without leave first being obtained.

8. Any self-represented litigant seeking to rely upon documents to which rule 6.37(2)(b) of the Federal Circuit and Family Court Rules 2021 (Cth) applies (“the restricted documents”), is required to attend the Exhibits Section of the Sydney Registry and make a copy of any document sought to be relied upon and place such documents in a separate sleeve to be provided by the Exhibits Section and marked “Documents for Tender.”

9. Leave is granted to the legal representatives of each party only and, if applicable, the Independent Children’s Lawyer, to photocopy all documents produced on subpoena in these proceedings to which access has been granted, including documents to which rule 6.37(2)(b) of the Federal Circuit and Family Court Rules 2021 (Cth) applies (“the restricted documents”). For that purpose:

(a) a legal representative must not:

(i) provide a copy of the restricted documents to their client in any form;

(ii) permit their client to copy the restricted documents; or

(iii) allow any other person to provide the restricted documents to the client.

10. A legal representative may provide the restricted documents to another lawyer briefed or engaged to appear at the hearing or in accordance with a further Order of the Court, but not otherwise and a sealed copy of these Orders must be provided to any person receiving a copy of the restricted documents, including solicitors or Counsel. Any person receiving a copy of the restricted documents pursuant to these Orders is subject to the same restrictions and obligations as the legal representative in relation to the restricted documents.

11. That upon either of the following events:

(a) the instructions to the legal representatives on record being withdrawn and/or their ceasing to act;

(b) the finalisation of these proceedings whether by consent or determination by the Court;

the legal representatives must forthwith return to the Court with a letter addressed to the Registrar and marked confidential, a copy of this Order together with all and any copies of the documents obtained pursuant to the abovementioned paragraph.

12. That leave be granted for short service, with the father to effect service of the Initiating Application filed on 8 November 2023 and any material filed in support thereof by no later than 4:00pm on Friday 17 November 2023.

THE COURT NOTES THAT:

A. These Orders have been amended pursuant to rule 10.13 of the 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).

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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