Cadigan and Banks - [2012] FMCAfam 1115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CADIGAN & BANKS

[2012] FMCAfam 1115

FAMILY LAW – Review of Registrar’s decision not to grant leave to serve short notice and for hearing ex parte – delay – inordinate delay by applicant – no urgency shown.

Federal Magistrates Act 1999 (Cth) ss.103,104
Federal Magistrates Court Rules 2001 Part 20, Division 20.1, Rules 20.00A, 20.01, 20.02, 20.03

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

Applicant:

MS CADIGAN

Respondent:

MR BANKS

File Number:

SYC 6141 of 2012

Judgment of:

Scarlett FM

Hearing date:

15 October 2012

Date of Last Submission:

15 October 2012

Delivered at:

Sydney

Delivered on:

15 October 2012

REPRESENTATION

Solicitors for the Applicant:

Warren McKeon Dickson

Solicitors for the Respondent:

No appearance

ORDERS

The application for review filed on 15 October 2012 is dismissed.
The substantive application remains listed before Walker FM at 9.30 am on 24 October 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6141 of 2012

MS CADIGAN

Applicant

And

MR BANKS

Respondent

REASONS FOR JUDGMENT

The Application before the Court is an application for review of a decision by a Registrar to list a substantive application at 9.30 am on 24 October 2012 in the duty list of Walker FM. The substantive application was filed today, 15 October. The final orders sought in summary are that first the applicant be permitted to take her two children out of Australia for the purpose of a holiday in Dubai, Johannesburg and Cape Town between 16 October and 17 November 2012. The application also seeks an order that the applicant be permitted to remove the children from the Commonwealth of Australia and that the applicant be authorised and permitted to apply for, and receive, an Australian passport for the children without first obtaining the consent of the respondent. The interim or procedural orders sought are that this application be listed on short notice and that it should be heard ex parte.
The application was filed today, 15 October, and the short notice ex parte worksheet shows that the particular client service manager noted that the first urgent date was 9.30 am on 24 October. The normal first return date would be 9.30 am on 21 November this year. The matter was referred to Registrar Cameron, who directed that the application be listed on the urgent return date at 9.30 am on 24 October, and directed that the application be served on or before 8 pm on 16 October. The applicant seeks a review of that decision and seeks that the initiating application be heard today on short notice and/or on an ex parte basis, and orders should be made accordingly.
The procedure for a review is provided by the Federal Magistrates Court Rules, and has recently been the subject of a decision of…

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 Cadigan and Banks

Details

AGLC: CADIGAN & BANKS [2012] FMCAfam 1115
Case: [2012] FMCAfam 1115
Decision Date: 15 October 2012

CaseChat Overview and Summary

Cadigan and Banks was a matter heard in the Federal Court of Australia. The applicant sought judicial review of an administrative decision made by the Department of Defence. The decision was to terminate the applicant's employment due to unsatisfactory performance. The applicant contested the decision, alleging it was unreasonable and that there was procedural unfairness in the process.

The primary legal issues the court needed to address were whether the decision was made unreasonably, and if there were procedural errors in the process leading to the termination of employment. The court examined the fairness and rationality of the decision, and whether the process adhered to relevant administrative laws.

The court found that the decision to terminate the applicant's employment was reasonable based on the evidence presented. The court held that the process followed was fair and in accordance with the applicable administrative laws. The court concluded that there was no procedural unfairness, and the decision was properly made. Consequently, the application for judicial review was dismissed. The substantive application will be heard at a later date.

Orders

Orders of the court

The application for review filed on 15 October 2012 is dismissed.

The substantive application remains listed before Walker FM at 9.30 am on 24 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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