Naylor & Naylor

[2021] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

Naylor & Naylor [2021] FCCA 844

File number(s):

ADC 4381 of 2020

Judgment of:

JUDGE BROWN

Date of judgment:

20 April 2021

Catchwords:

FAMILY LAW  –  review of decision by Senior Registrar  – interim parenting proceedings – exclusion of evidence of negotiation ­– role of independent children’s lawyer –  where allegations of family violence – assessment of risk ­–– children aged 9 and 6 years – application for review dismissed

Legislation:

Evidence Act 1995 (Cth), ss 131(1),(2)

Family Law Act 1975 (Cth), ss 4, 4AB, 68LA, 67Z

Federal Circuit Court Act 1999 (Cth), ss 104(2)

Federal Circuit Court Rules 2001 (Cth), r 20.03

Cases cited:

Slater & Light [2013] FamCAFC 4

Number of paragraphs:

99

Date of hearing:

13 April 2021

Place:

Adelaide

Counsel for the Applicant:

Mr Boehm

Solicitor for the Applicant:

Ryans Lawyers

Solicitor for the Respondent:

Mr Sim for Degaris Legal

Solicitor for the Independent Children's Lawyer:

Ms Atchison for Nicola Atchison

ORDERS

ADC 4381 of 2020

BETWEEN:

MR NAYLOR

Applicant

AND:

MS NAYLOR

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	20 APRIL 2021

THE COURT ORDERS THAT:

1.The application for review is dismissed.

2.The orders of the Senior Registrar are undisturbed.

3.The application for costs is adjourned to the previously listed date of 19 May 2021 at 9:30am in Mount Gambier before Judge Brown.

4.On or before 12 May 2021, the father has liberty to file any affidavit on costs.

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.

IT IS NOTED that publication of this judgment under the pseudonym Naylor & Naylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Settled from ex temp reasons)

JUDGE BROWN

1. This is an application for review of a decision of a senior registrar of the court made on 1 March 2021, pursuant to the provisions of section 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth). The procedure to be followed for review is set out in rule 20.03 of the Federal Circuit Court Rules 2001 (Cth).

2. In brief, the hearing is one that is conducted de novo.  What this means is that, on review, the court must consider the case before it afresh.  The court may, however: 

   ·receive evidence by affidavit or exhibit which were tendered before the registrar; 

   ·may, with leave, receive further evidence; and

   ·may receive evidence by way of transcript.

3. The review application was filed on 18 March 2021.  The parties to the review are Mr Naylor, the father, and Ms Naylor, the mother.  It arrives in respect of parenting arrangements for two children.  The children are X, born in 2012, and Y, born in 2015.

4. On 18 November 2020, it was ordered, by Senior Registrar Heuer that X and Y be independently represented in the proceedings, pursuant to the provisions of…