Bruin & Bruin - [2024] FedCFamC2F 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin [2024] FedCFamC2F 102

File number(s): MLC 1939 of 2022

Judgment of: JUDGE HARLAND

Date of judgment: 14 February 2024

Catchwords: FAMILY LAW – application to re-open proceedings after reasons reserved and before judgment has been delivered

Legislation: Family Law Act 1975 (Cth) Division 12A

Cases cited:
Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204

Chisler & Gatenby [2019] FamCA 200

Correia & Davila [2019] FamCA 558

Khadem & Penk [2020] FamCAFC 211

OP v TP an Another (Conduct of Counsel) [2002] FamCA 1155

Trevor & Trevor [2016] FamCA 756

Ressell & Morath [2023] FedCFamC1A 145

Division: Division 2 Family Law

Number of paragraphs: 53

Date of hearing: 7 February 2024

Place: Melbourne

The Applicant Self-Represented

Solicitor advocate for the Respondent Mr Kelly of Coote Family Lawyers

Solicitor for the Independent Children’s Lawyer Ms Trapski of Trapski Family Law

ORDERS

MLC 1939 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BRUIN

Applicant

AND:
MR BRUIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

14 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The application in a proceeding filed on 31 January 2024 be dismissed.
2.Any submissions and supporting documents with respect to any application for costs be filed within 28 days and any submissions in reply and supporting documents be filed within 28 days thereafter.
3.The issue of costs is to be determined in Chambers unless leave is granted to be listed for an oral hearing.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

The parenting trial ran before me for three days. My chambers notified the parties of my intention to deliver written reasons for my decision at 10.00am on 31 January 2024. About half an hour before I was due to deliver reasons, the Independent Children’s Lawyer (‘ICL’) emailed chambers to advise that that the mother had attempted to file an application in a proceeding on the Commonwealth Courts Portal to reopen the proceedings before judgment had been delivered. The ICL also indicated that she would oppose that application being made. It was perfectly appropriate for the ICL to advise chambers of this. It avoided a…

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 Bruin & Bruin

Details

AGLC: Bruin & Bruin [2024] FedCFamC2F 102
Case: [2024] FedCFamC2F 102
Decision Date: 14 February 2024

CaseChat Overview and Summary

Ms Bruin sought to re-open proceedings under section 121 of the Family Law Act 1975 (Cth) after reasons for judgment had been reserved but before judgment was delivered. Mr Bruin opposed the application. The court was required to determine whether it had the power to re-open proceedings under the circumstances presented. The key issue was whether the court could exercise its discretion to permit the re-opening of proceedings under section 121 of the Family Law Act 1975 (Cth) after reasons for judgment had been reserved but before judgment was delivered.

The court considered the nature of the power under section 121 of the Family Law Act 1975 (Cth) and noted that this section was intended to prevent the publication of family law proceedings that identify persons, associated persons, or witnesses involved in such proceedings. The court held that section 121 did not confer a discretion to re-open proceedings once reasons for judgment had been reserved. The court held that the application to re-open the proceedings was not within its power, and accordingly dismissed the application. The court also set a timeline for the parties to submit their submissions and supporting documents regarding the issue of costs, with a determination of the costs issue to occur in chambers unless leave was granted for an oral hearing.

Orders

Orders of the court

MLC 1939 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BRUIN

Applicant

AND:

MR BRUIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

14 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The application in a proceeding filed on 31 January 2024 be dismissed.

2. Any submissions and supporting documents with respect to any application for costs be filed within 28 days and any submissions in reply and supporting documents be filed within 28 days thereafter.

3. The issue of costs is to be determined in Chambers unless leave is granted to be listed for an oral hearing.

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

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 1939 of 2022
Judgment of:	JUDGE HARLAND
Date of judgment:	14 February 2024
Catchwords:	FAMILY LAW – application to re-open proceedings after reasons reserved and before judgment has been delivered
Legislation:	Family Law Act 1975 (Cth) Division 12A
Cases cited:	Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204 Chisler & Gatenby [2019] FamCA 200 Correia & Davila [2019] FamCA 558 Khadem & Penk [2020] FamCAFC 211 OP v TP an Another (Conduct of Counsel) [2002] FamCA 1155 Trevor & Trevor [2016] FamCA 756 Ressell & Morath [2023] FedCFamC1A 145
Division:	Division 2 Family Law
Number of paragraphs:	53
Date of hearing:	7 February 2024
Place:	Melbourne
The Applicant	Self-Represented
Solicitor advocate for the Respondent	Mr Kelly of Coote Family Lawyers
Solicitor for the Independent Children’s Lawyer	Ms Trapski of Trapski Family Law

MLC 1939 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BRUIN Applicant
AND:	MR BRUIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	14 FEBRUARY 2024