Darvell & Darvell - [2021] FamCA 490

FAMILY COURT OF AUSTRALIA
Darvell & Darvell [2021] FamCA 490

File number(s): SYC 699 of 2013

Judgment of: ALTOBELLI J

Date of judgment: 7 July 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of a registrar’s decision – Application granted ex parte in Chambers – Abridgment of time granted – Matter listed for urgent Interim Defended Hearing before a senior registrar.

Legislation:
Family Law Act 1975 (Cth) s 37A

Family Law Rules 2004 (Cth) rr 1.12, 5.17, 18.6

Cases cited: Bailey & Peters [2021] FamCA 299

Number of paragraphs: 7

Date of last submission/s: 28 June 2021

Date of hearing: 29 June 2021 (in Chambers)

Place: Sydney

The Applicant: No appearance

The Respondent: No appearance
ORDERS

SYC 699 of 2013

BETWEEN:
MS DARVELL

Applicant

AND:
MR DARVELL

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be heard and determined in Chambers on an ex parte basis.
2.The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be allowed.
3.The matter be granted an abridgment of time and listed on 9 July 2021 at 10am before Senior Registrar Evans for urgent Interim Defended Hearing in relation to the interim orders sought in the application filed on 21 June 2021.
4.Within 24 hours of notification of the making of this order, the Applicant serve on the Respondent a copy of this order as well as all initiating documents filed together with the application on 21 June 2021.
5.Within 7 days of the date of this order, the Respondent file and serve the following documents:
(a)A Response;
(b)Any Affidavit material on which he seeks to rely;
(c)A Financial Statement; and
(d)A Notice of Risk.

6.By no later than 4pm on 7 July 2021 each party is to file and serve a case outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

IT IS NOTED THAT
Pursuant to Rule 11.16 of the Family Law Rules 2004 these orders are made in Chambers on an ex parte basis and without the consent of the Respondent, noting that the Respondent has not been served.
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 17.02A(b) of the Family Law Rules 2004 (Cth)),…

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 Darvell & Darvell

Details

AGLC: Darvell & Darvell [2021] FamCA 490
Case: [2021] FamCA 490
Decision Date: 7 July 2021

CaseChat Overview and Summary

In the matter of *Darvell & Darvell*, Ms Darvell, the applicant, sought a review of a registrar's decision not to grant an abridgment of time and list her application for urgent interim orders. Mr Darvell was the respondent. The application for review was heard and determined by Altobelli J.

The primary legal issue before the court was whether to grant an abridgment of time and list the matter for an urgent interim defended hearing, notwithstanding the registrar's prior refusal. This involved considering the urgency of the interim orders sought and the appropriateness of proceeding ex parte in Chambers for the review application.

Altobelli J reasoned that the circumstances warranted an abridgment of time and an urgent listing. The court granted the application for review ex parte in Chambers, allowing the abridgment of time. The matter was subsequently listed for an urgent interim defended hearing before Senior Registrar Evans. Directions were made for the applicant to serve the order and initiating documents on the respondent within 24 hours, and for the respondent to file and serve various documents, including a Response, affidavits, a Financial Statement, and a Notice of Risk, within seven days. Further directions required both parties to file and serve a case outline document by a specified date, detailing documents to be read, precise minutes of orders sought, and a summary of argument.

Orders

Orders of the court

SYC 699 of 2013

BETWEEN:

MS DARVELL

Applicant

AND:

MR DARVELL

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1. The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be heard and determined in Chambers on an ex parte basis.

2. The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be allowed.

3. The matter be granted an abridgment of time and listed on 9 July 2021 at 10am before Senior Registrar Evans for urgent Interim Defended Hearing in relation to the interim orders sought in the application filed on 21 June 2021.

4. Within 24 hours of notification of the making of this order, the Applicant serve on the Respondent a copy of this order as well as all initiating documents filed together with the application on 21 June 2021.

5. Within 7 days of the date of this order, the Respondent file and serve the following documents:

(a) A Response;

(b) Any Affidavit material on which he seeks to rely;

(d) A Notice of Risk.

6. By no later than 4pm on 7 July 2021 each party is to file and serve a case outline document, setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

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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File number(s):	SYC 699 of 2013
Judgment of:	ALTOBELLI J
Date of judgment:	7 July 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of a registrar’s decision – Application granted ex parte in Chambers – Abridgment of time granted – Matter listed for urgent Interim Defended Hearing before a senior registrar.
Legislation:	Family Law Act 1975 (Cth) s 37A Family Law Rules 2004 (Cth) rr 1.12, 5.17, 18.6
Cases cited:	Bailey & Peters [2021] FamCA 299
Number of paragraphs:	7
Date of last submission/s:	28 June 2021
Date of hearing:	29 June 2021 (in Chambers)
Place:	Sydney
The Applicant:	No appearance
The Respondent:	No appearance

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	29 JUNE 2021