DARCY & DARCY - [2012] FMCAfam 664

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARCY & DARCY

[2012] FMCAfam 664

FAMILY LAW – Property – full and frank disclosure – consent orders made by a registrar at a conciliation conference.

PRACTICE AND PROCEDURE – Review of consent orders approved by a registrar – consent withdrawn – nature of a hearing de novo.

Commonwealth Constitution, ch.III
Family Law Act 1975, ss.37A, 79, 79A

Family Law Rules 2004, regs.18.06, 18.08
Federal Magistrates Act 1999 (Cth), ss.102, 103, 104
Federal Magistrates Court Rules 2001, regs. 20.00A, 20.01, 20.02, 20.03

Boutros v Santa Sabina College Ltd [2011] FCA 477
Harris v Caladine (1991) 172 CLR 84; (1991) 99 ALR 193
Q v Crest [2009] FamCA 1043
Russell v Polites Investments Pty Ltd [2011] FMCA 476
Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180

Applicant:

MS DARCY

Respondent:

MR DARCY

File Number:

SYC 1010 of 2010

Judgment of:

Monahan FM

Hearing date:

3 April 2012

Date of Last Submission:

8 May 2012

Delivered at:

Sydney

Delivered on:

17 August 2012

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

Reid Family Lawyers

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Self-represented Litigant

ORDERS

All extant applications be adjourned to this Court on 16 October 2012 at 9:30am for mention (“the mention hearing”).
The Orders made on 19 January 2012 be discharged.
By not later than 4:00pm on 7 September 2012, the Applicant make, file and serve any Amended Initiating Application, affidavit in support and updated Financial Statement.
By not later than 4:00pm on 28 September 2012, the Respondent make, file and serve his Amended Response, affidavit in support and updated Financial Statement.
Following compliance with paragraphs three (3) and four (4) herein, the parties have liberty to apply to Chambers jointly for a further Conciliation Conference to be allocated with a Registrar other than Registrar Crawford and in that event a further mention date be allocated to follow upon the further Conciliation Conference.

AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to:
a.make further directions;
b.consider any issues regarding disclosure that the parties have not as yet been able to resolve between themselves; and
c.subject to paragraph five (5) herein, to refer to the parties to a further Conciliation Conference.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1010 of 2010

MS DARCY

Applicant

And

MR DARCY

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings that were commenced by the Applicant, MS DARCY, (“the Applicant”) against the Respondent, MR DARCY, (“the Respondent”) by means of an Initiating Application filed by the Applicant on 16 September 2011.
The present application was brought by the Applicant by way of her Application for Review filed on 1 February 2012. In her Application for Review, the Applicant seeks, inter alia,…

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.

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Details

AGLC: DARCY & DARCY [2012] FMCAfam 664
Case: [2012] FMCAfam 664
Decision Date

CaseChat Overview and Summary

In these proceedings, the Applicant, MS DARCY, filed an Application for Review seeking the discharge of consent orders made by a Registrar. The Respondent, MR DARCY, opposed the application. The primary legal issue before the court was whether the Applicant's Application for Review should be granted. The court held that the Applicant's Application for Review should be granted and the Consent Orders made 19 January 2012 should be discharged. The court held that the mere fact of the Applicant withdrawing her consent and making her application that the consent orders be discharged brought the matter within the scope of the court's discretion to review the decision without the court needing to have regard to the factors traditionally pleaded in support of an application under s.79A. The reasons underlying the withdrawal of consent, while doubtless relevant in certain other contexts, were of no consequence in this court determining the Application for Review. The court held that the review was not an appeal from, nor an evaluation of the correctness of, the orders made by the Registrar. The court further held that the matter should proceed to a full hearing of the competing property applications with a full consideration of all relevant matters and that there was merit in referring the parties back to a Conciliation Conference before considering any listing of the matter for Final Hearing. The court made orders that the parties make, file and serve amended pleadings together with updated affidavits and Financial Statements and that the matter be adjourned for a short period.

Orders