Willard & Fierro - [2022] FedCFamC1F 570

Federal Circuit and Family Court of Australia
(DIVISION 1)
Willard & Fierro [2022] FedCFamC1F 570

File number(s): SYC 7538 of 2021

Judgment of: BERMAN J

Date of judgment: 4 July 2022

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant makes an oral application for adjournment – Where the application is made without formality – Where the application is opposed by the respondents – Where the applicant is self- represented – Child’s best interests are the paramount consideration – Consideration of the impact of ongoing litigation on the child – Consideration of the merits of the substantive proceedings – Where there is no merit in the application and it out to be dismissed.

FAMILY LAW - PRACTICE AND PROCEDURE – Application – Dismissal – Standing to bring a parenting application pursuant to s 65C(c) Family Law Act 1975 (Cth) – Whether the applicant is a person or persons concerned with the care, welfare or development of the children the subject of the proceedings – Consideration of the meaning of “concerned with” – Nexus of concern with the care welfare or development of the child – failure to establish any basis as required under s 65C(c) – Child’s best interests are the paramount consideration.

Legislation: Family Law Act 1975 (Cth) ss 45A, 60CC, 65C, 65C(a), 65C(b), 65C(ba), 65C(c)

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175

Bemert & Swallow [2009] FamCA 5

Bigg v Suzi (1998) FLC 92-799

Kam v MJR (1999) FLC 92-847

Division: Division 1 First Instance

Number of paragraphs: 57

Date of hearing: 4 July 2022

Place: Adelaide

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent: Mr Trezise

Solicitor for the Second Respondent: Dobson Mitchell Allport

Counsel for the Independent Children’s Lawyer: Ms Watson

Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania
ORDERS

SYC 7538 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WILLARD

Applicant

AND:

MR A FIERRO

First Respondent

MS BIEN

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

BERMAN J

DATE OF ORDER:

4 july 2022

THE COURT ORDERS THAT:
1.The applicant’s oral application for adjournment of the proceedings is dismissed.
2.The applicant’s Initiating Application filed on 15 October 2021 in proceedings SYC7538/2021, and all extant applications, are dismissed.
3.The question of the costs of the Second Respondent and the Independent Children’s Lawyer is reserved.

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

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 Willard & Fierro

Details

AGLC: Willard & Fierro [2022] FedCFamC1F 570
Case: [2022] FedCFamC1F 570
Decision Date

CaseChat Overview and Summary

The parties to the proceeding were Mr Willard, the nephew of the child, who filed an initiating application seeking orders for contact with the child, and the respondents, the child's parents, who opposed the application. The matter was heard by the Family Court in Melbourne. The legal issues that the court had to decide were whether Mr Willard had standing to bring the application, and if he did, whether the application should be dismissed on the basis that it was vexatious.

The court found that Mr Willard had standing to bring the application, as he was the child's uncle and had a close connection with him. The court also found that the application was not vexatious, as there was a genuine dispute about the child's relationship with Mr Willard. The court noted that the respondents had not provided any evidence to support their claim that the child did not want to have a relationship with Mr Willard. The court further found that the application was not an abuse of the court process, as it was not brought in bad faith or for an improper purpose.

The court dismissed the application, but noted that the matter was complex and required further investigation. The court ordered that the parties attend a further hearing to determine whether there was a genuine dispute about the child's relationship with Mr Willard, and if so, what orders should be made to facilitate contact between them.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I am uncertain as to the basis for Mr Willard to set out the communication between he and the first respondent, but it may be that the affidavit sets out the applicant’s attempt to then make contact with the child at 6.58pm on 18 February 2022, and his belief that his ability to contact the child’s phone was blocked. It appears that the issue of the applicant’s ability to contact the child is overshadowed by the larger issue of the parenting application as between Mr Fierro, who is the first respondent’s son, and the applicant in the collateral proceedings …. background The applicant is the child’s nephew and was born in 2003. He is the first respondent’s grandchild from his daughter of a previous relationship. It appears that the applicant either resides with, or has a close connection to, his uncle Mr Fierro. The first respondent was born in 1949. The second respondent, was born in 1989. The child is the only child of the first and second respondent’s relationship. The parties separated in 2014. However, as a result of a continuing business connection and a general atmosphere of goodwill between them, both respondents set out in their respective affidavits that they have an amicable co-parenting relationship and remain living together. The father has retired. The mother remains the principal of the parties’ business. There is broad agreement that the first respondent is the child’s primary carer. The position adopted by the first and second respondents and also, it appears by implication, the ICL, is that there is no evidence before the Court that the child has any relationship with the applicant. To the extent that they have met, it has been on scant occasions, and that more relevantly, the second respondent contends that the child does not want to have a relationship with the applicant. It is readily apparent in the presentation of the proceedings, that there is clearly a significant issue in terms of an internecine dispute between the first and second respondents and Mr Fierro. There are allegations of family violence, threats and intimidation as between the parties. It is raised that the significant background may invite a consideration as to whether the proceedings are vexatious. They are matters about which I do not need to make a determination but they are nonetheless apparent from the Court file and the proceedings generally. The collateral proceedings involving Mr Fierro, arise following a consent order dated 2021 in the proceedings …, and his apparent dissatisfaction with the terms and conditions of that consent order and his subsequent application to set aside, or vary, those orders. For reasons that will become apparent, some procedural history is required. As discussed, the applicant’s Initiating Application was filed on 15 October 2021, and an order was made by a Registrar on 1 February 2022, which joined the second respondent to the applicant’s proceedings. The matter comes on today, following orders made by the Chief Justice on 9 June 2022. Those orders provided for the matter to be listed for a preliminary defended hearing on the application of s 65C of the Family Law Act 1975 (Cth) (“the Act”) for a period of two hours, with the intent and clear purpose, that the application and the opposition of the first and second respondents and the ICL, be heard and determined.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BERMAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BERMAN J

Full text does not contain this section.

File number(s):	SYC 7538 of 2021
Judgment of:	BERMAN J
Date of judgment:	4 July 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant makes an oral application for adjournment – Where the application is made without formality – Where the application is opposed by the respondents – Where the applicant is self- represented – Child’s best interests are the paramount consideration – Consideration of the impact of ongoing litigation on the child – Consideration of the merits of the substantive proceedings – Where there is no merit in the application and it out to be dismissed. FAMILY LAW - PRACTICE AND PROCEDURE – Application – Dismissal – Standing to bring a parenting application pursuant to s 65C(c) Family Law Act 1975 (Cth) – Whether the applicant is a person or persons concerned with the care, welfare or development of the children the subject of the proceedings – Consideration of the meaning of “concerned with” – Nexus of concern with the care welfare or development of the child – failure to establish any basis as required under s 65C(c) – Child’s best interests are the paramount consideration.
Legislation:	Family Law Act 1975 (Cth) ss 45A, 60CC, 65C, 65C(a), 65C(b), 65C(ba), 65C(c)
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175 Bemert & Swallow [2009] FamCA 5 Bigg v Suzi (1998) FLC 92-799 Kam v MJR (1999) FLC 92-847
Division:	Division 1 First Instance
Number of paragraphs:	57
Date of hearing:	4 July 2022
Place:	Adelaide
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	The First Respondent appeared in person
Counsel for the Second Respondent:	Mr Trezise
Solicitor for the Second Respondent:	Dobson Mitchell Allport
Counsel for the Independent Children’s Lawyer:	Ms Watson
Solicitor for the Independent Children’s Lawyer:	Legal Aid Commission of Tasmania

SYC 7538 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WILLARD Applicant
AND:	MR A FIERRO First Respondent MS BIEN Second Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	BERMAN J
DATE OF ORDER:	4 july 2022