Duggan & Sanchez - [2024] FedCFamC2F 213

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duggan & Sanchez [2024] FedCFamC2F 213

File number(s): ADC 2844 of 2023

Judgment of: JUDGE MCGINN

Date of judgment: 26 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – de facto financial proceedings – jurisdiction yet to be established - power to order financial conciliation conference and external dispute resolution – financial circumstances of parties – external dispute resolution to take place

Legislation:
Family Law Act 1975

Federal Circuit and Family Court of Australia Act 2021

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Central Practice Direction – Family Law Case Management

Cases cited:
Holden & Wolff [2014] FamCAFC 224; (2014) FLC 93-621

Norton & Locke [2013] FamCAFC 202; (2013) FLC 93 - 567

Division: Division 2 Family Law

Number of paragraphs: 27

Date of last submission/s: 28 November 2023

Date of hearing: On the papers (considered in Chambers)

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Norman Waterhouse Lawyers
ORDERS

ADC 2844 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DUGGAN

Applicant

AND:
MR SANCHEZ

Respondent

ORDER MADE BY:

JUDGE MCGINN

DATE OF ORDER:

26 FEBRUARY 2024

THE COURT ORDERS THAT:
1.That this matter be listed before a Judicial Registrar on 21 March 2024 at 4:00pm (Adelaide time) for the making of orders and directions to cause the parties to attend private mediation or other form of dispute resolution pursuant to Rule 4.05.
2.That in the event of the Judicial Registrar not then being available, that the hearing referred to in order 1 be undertaken by such Judicial Registrar at such date and time and place as the Court may advise.

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 McGINN:

This matter comes before the Court for mention and directions following orders made by a Judicial Registrar on 29 September 2023 wherein it was noted that there was a question as to whether the parties should proceed to a financial conciliation conference prior to further case management in circumstances where there were jurisdictional issues raised in relation to the proceedings.
The Initiating Application filed 27 June 2023 in this matter seeks orders for a declaration that the…

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 Duggan & Sanchez

Details

AGLC: Duggan & Sanchez [2024] FedCFamC2F 213
Case: [2024] FedCFamC2F 213
Decision Date: 26 February 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a case involving Ms Duggan and Mr Sanchez, in which the court was required to determine whether it had jurisdiction to entertain de facto financial proceedings. The primary legal issue before the court was whether it possessed the authority to order a financial conciliation conference and external dispute resolution, given that the court had not yet established jurisdiction over the matter. This decision hinged on the financial circumstances of both parties and the court's ability to facilitate an external dispute resolution process.

Judge McGinn addressed the court's jurisdiction by examining the financial circumstances of the parties and the applicability of the relevant provisions of the Family Law Act 1975. The court concluded that, despite the absence of established jurisdiction, it had the power to order a financial conciliation conference and external dispute resolution. The court reasoned that this power was necessary to assist the parties in resolving their financial disputes in a manner that was both efficient and conducive to their respective circumstances. The court found that the external dispute resolution process would be beneficial in this case, given the nature of the parties' financial circumstances.

In light of the court's reasoning, it ordered that the matter be listed before a Judicial Registrar on 21 March 2024 at 4:00pm (Adelaide time) for the making of orders and directions to cause the parties to attend private mediation or other form of dispute resolution pursuant to Rule 4.05. The court emphasised that the form of the order was subject to entry in the Court’s records and could be subject to review or variation as necessary. This decision demonstrates the court's willingness to facilitate dispute resolution even in cases where jurisdiction has not yet been established.

Orders

Orders of the court

ADC 2844 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DUGGAN

Applicant

AND:

MR SANCHEZ

Respondent

ORDER MADE BY:

JUDGE MCGINN

DATE OF ORDER:

26 FEBRUARY 2024

THE COURT ORDERS THAT:

1. That this matter be listed before a Judicial Registrar on 21 March 2024 at 4:00pm (Adelaide time) for the making of orders and directions to cause the parties to attend private mediation or other form of dispute resolution pursuant to Rule 4.05.

2. That in the event of the Judicial Registrar not then being available, that the hearing referred to in order 1 be undertaken by such Judicial Registrar at such date and time and place as the Court may advise.

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):	ADC 2844 of 2023
Judgment of:	JUDGE MCGINN
Date of judgment:	26 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – de facto financial proceedings – jurisdiction yet to be established - power to order financial conciliation conference and external dispute resolution – financial circumstances of parties – external dispute resolution to take place
Legislation:	Family Law Act 1975 Federal Circuit and Family Court of Australia Act 2021 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Central Practice Direction – Family Law Case Management
Cases cited:	Holden & Wolff [2014] FamCAFC 224; (2014) FLC 93-621 Norton & Locke [2013] FamCAFC 202; (2013) FLC 93 - 567
Division:	Division 2 Family Law
Number of paragraphs:	27
Date of last submission/s:	28 November 2023
Date of hearing:	On the papers (considered in Chambers)
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Norman Waterhouse Lawyers

ADC 2844 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DUGGAN Applicant
AND:	MR SANCHEZ Respondent

ORDER MADE BY:	JUDGE MCGINN
DATE OF ORDER:	26 FEBRUARY 2024