Epworth and Epworth - [2009] FamCA 294

FAMILY COURT OF AUSTRALIA

EPWORTH & EPWORTH

[2009] FamCA 294

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

Brown & Brown (2004) FamCA 1067

APPLICANT:

Mr Epworth

RESPONDENT:

Ms Epworth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9472

2007

DATE DELIVERED:

15 April 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Bonsall

SOLICITOR FOR THE APPLICANT:

Madisons Lawyers

SOLICITOR FOR

KENNA TEASDALE:

Mr S Gregory

THE RESPONDENT WIFE

No Appearance

THE INDEPENDENT CHILDREN’S LAWYER

No Appearance

Orders

That all outstanding applications be adjourned for final hearing before me as the third case (as at this time) in the list of defended matters for the period of ten days commencing on 6 August 2009 at 10.00am as a one day matter.
That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.
That by 4 pm on 26 June 2009 the applicant file:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 26 June 2009.
That by 4 pm on 17 July 2009 the respondent file:
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:
(a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or
(b)refer the case to the trial judge for directions as to its future management; or
(c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or
(d)return the case to the Registrar’s docket on a date to be fixed for further management
AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on…

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 Epworth and Epworth

Details

AGLC: Epworth and Epworth [2009] FamCA 294
Case: [2009] FamCA 294
Decision Date: 15 April 2009

CaseChat Overview and Summary

The matter of Epworth and Epworth came before Cronin J in the Family Court of Australia. The dispute concerned applications that were outstanding, with the court issuing directions for their final hearing.

The court was required to determine the procedural steps necessary to bring the matter to a final hearing, including the precise nature of the orders sought by each party, the filing of evidence, and the management of the case by registrars. The court also needed to address potential non-compliance with its orders and the consequences thereof, as well as the provision of information regarding costs.

Cronin J directed that all outstanding applications be adjourned for a final hearing commencing on 6 August 2009, estimating it as a one-day matter. Registrars Sikiotis and Kaur were appointed as docketed registrars for case management. Specific deadlines were set for the applicant to file an amended application, affidavits of evidence in chief, and a financial statement, along with the payment of the trial fee. The respondent was similarly directed to file an amended response, affidavits, and a financial statement by a later date. The court also stipulated the electronic filing of concise orders, lists of affidavits, assets and liabilities, and summaries of argument by 3 August 2009. Provisions were made for the registrars to manage the case and for parties to seek variations to obligations. The court outlined a clear process for dealing with non-compliance, including the possibility of striking out the case or referring it to the trial judge or Case Management Judge. Furthermore, each party was ordered to provide a statement of costs incurred and anticipated at the commencement of the hearing. The husband was directed to arrange service of all future documents on the wife.

The court ordered that its reasons be transcribed and provided to the wife. It was noted that while the case was allocated a place in the defended list, its position could change, and all parties were to monitor the list's progress.

Orders

Orders of the court

That all outstanding applications be adjourned for final hearing before me as the third case (as at this time) in the list of defended matters for the period of ten days commencing on 6 August 2009 at 10.00am as a one day matter.

That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

That by 4 pm on 26 June 2009 the applicant file:

(a) an amended application setting out with precision the orders to be sought;

(b) the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 26 June 2009.

That by 4 pm on 17 July 2009 the respondent file:

(a) an amended response setting out with precision what orders are being sought;

(b) the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

(a) If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

(b) refer the case to the trial judge for directions as to its future management; or

(d) return the case to the Registrar’s docket on a date to be fixed for further management

AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 3 August 2009 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(d) a bullet-point summary of argument in relation to the issues in dispute.

That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

10.

That the service of these orders and all future documents in the proceedings be arranged by the husband by post addressed to the wife at B Street, C.

11.

That my reasons this day be transcribed and a copy of the reasons be forwarded to the wife by the husband in accordance with paragraph 15 of these orders.

AND THE COURT NOTES

A. That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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.