Bellanger & Wemble (No 2) - [2024] FedCFamC2F 150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 2) [2024] FedCFamC2F 150

File number(s): MLC 5456 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 2 February 2024

Catchwords: FAMILY LAW – ex parte watchlist order review – urgent return after ex parte orders were made previously – no appearance by or on behalf of the first respondent – where the first respondent is in Country D – where the children of the proceeding are detained in Country D – the second respondent appearing in person – the second respondent being served previous ex parte orders on short notice – the second respondent seeking an adjournment – adjournment granted

Cases cited: Bellanger & Wemble [2023] FedCFamC2F 1246

Legislation: Family Law Act 1975 (Cth) Part VII

Division: Division 2 Family Law

Number of paragraphs: 15

Date of hearing: 2 February 2024

Place: Melbourne

Solicitor for the Applicant: Sunshine Lawyers

The First Respondent: No appearance

Solicitor for the Second Respondent: Ms Videion
ORDERS

MLC 5456 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BELLANGER

Applicant

AND:
MR WEMBLE

First Respondent

MS PAIGE

Second Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The matter be adjourned to 3 May 2024 at 10.00am for a Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.
2.The Solicitor for the Applicant do all acts and things necessary to serve a copy of these Orders via email to the First Respondent and to communicate the existence of these Orders via telephone.
3.The Second Respondent do all acts and things necessary to use any line of communication with the First Respondent as is available to her to advise him of these sealed Orders and of the next Court date.
4.The Second Respondent is to file such affidavit or any other documents of any evidence she wishes to rely upon and Orders she seeks by no later than 4.00pm on Friday, 8 March 2024.
5.The Applicant Mother be and is entitled to rely upon material that has been previously filed.

AND THE COURT NOTES THAT:
A.The purpose of the matter returning in May is to allow the Second Respondent to file and serve the relevant Trial material and for the Court to then reconsider the current Watchlist Order that is in place against the Second Respondent.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence…

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 Bellanger & Wemble (No 2)

Details

AGLC: Bellanger & Wemble (No 2) [2024] FedCFamC2F 150
Case: [2024] FedCFamC2F 150
Decision Date: 2 February 2024

CaseChat Overview and Summary

Bellanger & Wemble (No 2) involved an urgent return to review ex parte watchlist orders, heard in the Federal Circuit and Family Court of Australia. The case involved a mother, the applicant, who had previously obtained ex parte orders, including a watchlist order, to prevent the father, the first respondent, from contacting or being in the vicinity of the children. The first respondent was not present, nor represented, and was located in another country. The second respondent, who was served with the ex parte orders, appeared in person and sought an adjournment. The second respondent was seeking to have the current watchlist order reviewed and to present evidence and make orders.

The court was required to determine whether the ex parte orders should be maintained and if an adjournment was warranted to allow the second respondent to prepare and present evidence. The court also had to consider the implications of the absence of the first respondent and the location of the children in another country. The court noted the importance of the purpose of the return, which was to reconsider the current watchlist order and to allow the second respondent to file and serve relevant trial material.

The court granted the adjournment and directed the second respondent to serve a copy of the orders on the first respondent and to file relevant documents by a specified date. The court emphasised the importance of the second respondent using any available means of communication to ensure the first respondent was aware of the court's orders and the upcoming hearing date. The court also noted the potential implications of family violence in the proceedings, including the prohibition of unrepresented parties from cross-examining others if specific provisions applied. The court highlighted the availability of representation through the Commonwealth Family Violence and Cross-Examination of Parties Scheme, provided an application was made sufficiently in advance.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The matter be adjourned to 3 May 2024 at 10.00am for a Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.

2. The Solicitor for the Applicant do all acts and things necessary to serve a copy of these Orders via email to the First Respondent and to communicate the existence of these Orders via telephone.

3. The Second Respondent do all acts and things necessary to use any line of communication with the First Respondent as is available to her to advise him of these sealed Orders and of the next Court date.

4. The Second Respondent is to file such affidavit or any other documents of any evidence she wishes to rely upon and Orders she seeks by no later than 4.00pm on Friday, 8 March 2024.

5. The Applicant Mother be and is entitled to rely upon material that has been previously filed.

AND THE COURT NOTES THAT:

A. The purpose of the matter returning in May is to allow the Second Respondent to file and serve the relevant Trial material and for the Court to then reconsider the current Watchlist Order that is in place against the Second Respondent.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 5456 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	2 February 2024
Catchwords:	FAMILY LAW – ex parte watchlist order review – urgent return after ex parte orders were made previously – no appearance by or on behalf of the first respondent – where the first respondent is in Country D – where the children of the proceeding are detained in Country D – the second respondent appearing in person – the second respondent being served previous ex parte orders on short notice – the second respondent seeking an adjournment – adjournment granted
Cases cited:	Bellanger & Wemble [2023] FedCFamC2F 1246
Legislation:	Family Law Act 1975 (Cth) Part VII
Division:	Division 2 Family Law
Number of paragraphs:	15
Date of hearing:	2 February 2024
Place:	Melbourne
Solicitor for the Applicant:	Sunshine Lawyers
The First Respondent:	No appearance
Solicitor for the Second Respondent:	Ms Videion

MLC 5456 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BELLANGER Applicant
AND:	MR WEMBLE First Respondent MS PAIGE Second Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	2 FEBRUARY 2024