Eccleston & Eccleston - [2021] FedCFamC2F 162

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eccleston & Eccleston [2021] FedCFamC2F 162

File number(s): MLC 1249 of 2020

Judgment of: CHIEF JUDGE ALSTERGREN

Date of judgment: 12 October 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed – costs awarded

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 2.04, 5.05, 14.07

Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021 (Cth), Schedule 1

Cases cited:
Diacos & Gataki(No 3) [2021] FCCA 1841

Hearnes & Jellets [2020] FCCA 2722

Lombardi & Rider [2021] FedCFamC2F 57

Petrova & Leighton [2017] FCCA 315

Myers & Myers [2011] 253 FLR 445

Tadros & Tadros & Ors [2020] FCCA 1118

Vibbard & Garcia (2012) 48 Fam LR 1

Division: Division 2 Family Law

Number of paragraphs: 51

Date of last submission/s: 11 October 2021

Date of hearing: 7 October 2021, 11 October 2021

Place: Melbourne

Solicitor for the Applicant: James McConvill & Associates

Counsel for the Respondent: Ms McCreadie

Solicitor for the Respondent: Lander and Rogers
ORDERS

MLC 1249 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ECCLESTON

Applicant

AND:
MR ECCLESTON

Respondent

ORDER MADE BY:

CHIEF JUDGE ALSTERGREN

DATE OF ORDER:

11 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Application for Review filed by the Mother on 30 September 2021 be dismissed.
2.The Mother pay the Father’s costs of the Application for Review, fixed in the sum of $642 pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).

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 Eccelston & Eccelston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN

This matter concerns an Application for Review filed by the Mother on 30 September 2021 (“the Review Application”).
On 12 September 2021, the Mother filed an Application in a Proceeding, together with a supporting Affidavit and Cover letter for Urgency of even date, seeking orders that:
1. Leave be granted by the Court for…

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 Eccleston & Eccleston

Details

AGLC: Eccleston & Eccleston [2021] FedCFamC2F 162
Case: [2021] FedCFamC2F 162
Decision Date: 12 October 2021

CaseChat Overview and Summary

In this case, Ms Eccleston applied for a review of a decision by a Registrar not to list her matter on an urgent basis. The application was dismissed by Chief Judge Alstergren of the Federal Circuit and Family Court of Australia, and costs were awarded to the respondent, Mr Eccleston. The matter arose out of proceedings under the Family Law Act 1975 (Cth) and related to parenting arrangements for the parties' child.

The legal issues before the court included whether the Registrar's decision not to list the matter on an urgent basis was correct and, if not, whether the applicant's application for review should be allowed. The court was also required to consider the appropriate costs order to be made in the circumstances.

In considering the matter, Chief Judge Alstergren reviewed the evidence and submissions provided by both parties. The court found that the Registrar's decision not to list the matter on an urgent basis was correct and that the applicant had not established that there were exceptional circumstances that warranted an urgent hearing. The court also found that the applicant's application for review was not well-founded and should be dismissed. Accordingly, the court awarded costs to the respondent in the sum of $642.

In light of the above, the court dismissed the application for review and ordered that the applicant pay the respondent's costs in the sum of $642. The form of the order is subject to the entry in the Court’s records, and may be subject to review or variation in accordance with the relevant rules.

Orders

Orders of the court

MLC 1249 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ECCLESTON

Applicant

AND:

MR ECCLESTON

Respondent

ORDER MADE BY:

CHIEF JUDGE ALSTERGREN

DATE OF ORDER:

11 OCTOBER 2021

THE COURT ORDERS THAT:

1. The Application for Review filed by the Mother on 30 September 2021 be dismissed.

2. The Mother pay the Father’s costs of the Application for Review, fixed in the sum of $642 pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).

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 1249 of 2020
Judgment of:	CHIEF JUDGE ALSTERGREN
Date of judgment:	12 October 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed – costs awarded
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 2.04, 5.05, 14.07 Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021 (Cth), Schedule 1
Cases cited:	Diacos & Gataki(No 3) [2021] FCCA 1841 Hearnes & Jellets [2020] FCCA 2722 Lombardi & Rider [2021] FedCFamC2F 57 Petrova & Leighton [2017] FCCA 315 Myers & Myers [2011] 253 FLR 445 Tadros & Tadros & Ors [2020] FCCA 1118 Vibbard & Garcia (2012) 48 Fam LR 1
Division:	Division 2 Family Law
Number of paragraphs:	51
Date of last submission/s:	11 October 2021
Date of hearing:	7 October 2021, 11 October 2021
Place:	Melbourne
Solicitor for the Applicant:	James McConvill & Associates
Counsel for the Respondent:	Ms McCreadie
Solicitor for the Respondent:	Lander and Rogers

MLC 1249 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ECCLESTON Applicant
AND:	MR ECCLESTON Respondent

ORDER MADE BY:	CHIEF JUDGE ALSTERGREN
DATE OF ORDER:	11 OCTOBER 2021