BARDON & BARDON - [2012] FMCAfam 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARDON & BARDON

[2012] FMCAfam 1116

FAMILY LAW – Review of Registrar's decision not to grant leave to serve short notice of an Application in a Case – where Application for review successful – where Application in a Case returnable on 5 September 2012 – review of Registrar’s decision to be conducted as a hearing de novo.

COSTS – Where Applicant ordered to pay Respondent’s costs of the day.

Family Law Act 1975 (Cth), s.117
Federal Magistrates Act 1999 (Cth), ss.102, 103, 104
Federal Magistrates Court Rules 2001, Part 20, Division 20.2, Rules 20.01, 20.02, 20.03

Myers & Myers [2011] FMCAfam 1104
Vibbard & Garcia [2012] FamCAFC 114
Zeller & Whitby [2011] FMCAfam 431

Applicant:

MR BARDON

Respondent:

MS BARDON

File Number:

SYC 4449 of 2009

Judgment of:

Scarlett FM

Hearing date:

24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Sydney

Delivered on:

24 August 2012

REPRESENTATION

Solicitors for the Applicant:

Champion Legal

Solicitors for the Respondent:

Sydun & Co Solicitors

ORDERS

The Application for Review of a decision of a Registrar filed on 15 August 2012 is granted.
The Application in a Case filed on 8 August 2012 is returnable at 10:00 am on Wednesday 5 September 2012.
The Respondent wife is to file and serve a Response to the Application in a Case by Tuesday 4 September 2012.
The Applicant husband is to pay the Respondent wife’s costs of today fixed in the amount of $550.00 by 26 October 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4449 of 2009

MR BARDON

Applicant

And

MS BARDON

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for review of a decision by a Registrar not to grant leave to serve short notice of an Application in a Case.
The Application for Review filed on 15 August 2012 states:
The review is sought in relation to the decision not to grant short notice and to make the Application in a Case filed 8 August 2012 returnable on 8 October 2012.
The Application for Review appears to be reviewable by the Court, as the decision sought to be reviewed is a review of the exercise of the power to shorten or abridge a time fixed by the Rules and is therefore amenable to review under s.104(2) of the Federal Magistrates Act (see Vibbard & Garcia[1] at [26]). In Vibbard & Garcia, the Full Court of the Family Court endorsed the reasoning of Halligan FM in Myers & Myers[2] rather than the view put forward in Zeller & Whitby[3]
[1] [2012] FamCAFC 114
[2] [2011] FMCAfam 1104
[3] [2011] FMCAfam 431
The procedure for review of the exercise of a power by a Registrar under subsection 104(2) is contained in Division 20.2 of the Rules.
Shortening or abridging a time fixed by the Rules…

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 BARDON & BARDON

Details

AGLC: BARDON & BARDON [2012] FMCAfam 1116
Case: [2012] FMCAfam 1116
Decision Date: 24 August 2012

CaseChat Overview and Summary

The parties involved in this case are a husband and wife, collectively referred to as Bardon & Bardon. The dispute concerns a review of a Registrar's decision not to grant leave to serve a short notice of an Application in a family law case. The case was heard by the Family Court of Australia. The husband, as the applicant, sought a review of the Registrar's decision, which was subsequently successful. The original application in the case was scheduled to be heard on 5 September 2012, and the review of the Registrar's decision was conducted as a hearing de novo.

The legal issues before the court were whether the Registrar's decision should be reviewed and, if so, whether leave should be granted for the husband to serve short notice of the application. The husband argued that the Registrar's decision was incorrect and that leave should be granted to serve the short notice as the matter involved urgent family law issues. The wife opposed the application for review and argued that the husband had not demonstrated sufficient grounds for the review.

The court found that the Registrar's decision was indeed reviewable and granted the application for review. It was determined that the husband had demonstrated sufficient grounds for the review, as the matter involved urgent family law issues that warranted the grant of leave to serve short notice. Consequently, the application in the case was returnable on 5 September 2012, and the wife was required to file and serve a response by 4 September 2012. Furthermore, the husband was ordered to pay the wife's costs of the day, fixed at $550.00, by 26 October 2012.

Orders

Orders of the court

The Application for Review of a decision of a Registrar filed on 15 August 2012 is granted.

The Application in a Case filed on 8 August 2012 is returnable at 10:00 am on Wednesday 5 September 2012.

The Respondent wife is to file and serve a Response to the Application in a Case by Tuesday 4 September 2012.

The Applicant husband is to pay the Respondent wife’s costs of today fixed in the amount of $550.00 by 26 October 2012.

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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