Erwin & Loupe (No 4) - [2024] FedCFamC1F 530

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Erwin & Loupe (No 4) [2024] FedCFamC1F 530

File number: MLC 14204 of 2022

Judgment of: MCNAB J

Date of judgment: 23 July 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for the final hearing to proceed on an undefended basis as against the first respondent – Where the first respondent’s conduct and failure to comply with orders justifies the final hearing proceeding on an undefended basis as against the first respondent.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33

Cases cited:
Berridge & Leigh [2017] FCCA 2876

Tate & Tate (2000) FLC 93-047

Zane & Allan [2008] FamCAFC 115

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 23 July 2024

Place: Melbourne

Counsel for the Applicant: Mr Mort

Solicitor for the Applicant: Cahill Family Lawyers

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent: The Second Respondent did not appear

Counsel for the Third Respondent: The Third Respondent appeared in person

Counsel for the Fourth Respondent: Ms GG

Counsel for the Independent Children's Lawyer: The Independent Children’s Lawyer did not appear
ORDERS

MLC 14204 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ERWIN

Applicant

AND:
MR LOUPE

First Respondent

CA PROPERTY PTY LTD

Second Respondent

MS GG

Third Respondent

CB LAWYERS

Fourth Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:
1.Order 1 to 5 (inclusive) of the Interim Orders dated 8 December 2023 in relation to the appointment of single experts be set aside.
2.Order 26 of the Interim Orders dated 6 May 2024 in relation to the appointment of Mr CC as single expert be set aside.
3.Order 1 and 2 of the Interim Orders of the Senior Judicial Registrar dated 5 June 2024 (as amended on 11 June 2024) in relation to the joint letters of instruction for sending to the single experts be set aside.
4.The final hearing commencing 12 August 2024 proceed on an undefended basis as against the First Respondent.
5.The First Respondent pay the applicant’s costs of and incidental to this Application.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by…

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 Erwin & Loupe (No 4)

Details

AGLC: Erwin & Loupe (No 4) [2024] FedCFamC1F 530
Case: [2024] FedCFamC1F 530
Decision Date: 23 July 2024

CaseChat Overview and Summary

Erwin & Loupe (No 4) is a family law case in which the applicant, Ms Erwin, sought to proceed with the final hearing on an undefended basis against the first respondent, Mr Loupe. The matter involves complex issues surrounding property settlements and disputes between the parties. The case was heard in Division 1 of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the final hearing should proceed on an undefended basis against the first respondent due to his conduct and failure to comply with court orders. The court needed to assess whether the respondent's actions warranted allowing the applicant to proceed without his defence, thereby expediting the resolution of the matter.

The court found that Mr Loupe's conduct, including his failure to comply with court orders and engage in the proceedings appropriately, justified allowing the final hearing to proceed on an undefended basis. The court set aside several interim orders that had been made, including orders regarding the appointment of single experts and joint letters of instruction. The court concluded that the applicant should be permitted to proceed without the first respondent's defence, and ordered that Mr Loupe pay the applicant's costs associated with the application. This decision aimed to ensure the proceedings moved forward efficiently and justly, considering the respondent's non-compliance.

Orders

Orders of the court

MLC 14204 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ERWIN

Applicant

AND:

MR LOUPE

First Respondent

CA PROPERTY PTY LTD

Second Respondent

MS GG

Third Respondent

CB LAWYERS

Fourth Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:

1. Order 1 to 5 (inclusive) of the Interim Orders dated 8 December 2023 in relation to the appointment of single experts be set aside.

2. Order 26 of the Interim Orders dated 6 May 2024 in relation to the appointment of Mr CC as single expert be set aside.

3. Order 1 and 2 of the Interim Orders of the Senior Judicial Registrar dated 5 June 2024 (as amended on 11 June 2024) in relation to the joint letters of instruction for sending to the single experts be set aside.

4. The final hearing commencing 12 August 2024 proceed on an undefended basis as against the First Respondent.

5. The First Respondent pay the applicant’s costs of and incidental to this Application.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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:	MLC 14204 of 2022
Judgment of:	MCNAB J
Date of judgment:	23 July 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for the final hearing to proceed on an undefended basis as against the first respondent – Where the first respondent’s conduct and failure to comply with orders justifies the final hearing proceeding on an undefended basis as against the first respondent.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited:	Berridge & Leigh [2017] FCCA 2876 Tate & Tate (2000) FLC 93-047 Zane & Allan [2008] FamCAFC 115
Division:	Division 1 First Instance
Number of paragraphs:	24
Date of hearing:	23 July 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Mort
Solicitor for the Applicant:	Cahill Family Lawyers
Counsel for the First Respondent:	The First Respondent appeared in person
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Third Respondent:	The Third Respondent appeared in person
Counsel for the Fourth Respondent:	Ms GG
Counsel for the Independent Children's Lawyer:	The Independent Children’s Lawyer did not appear

MLC 14204 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ERWIN Applicant
AND:	MR LOUPE First Respondent CA PROPERTY PTY LTD Second Respondent MS GG Third Respondent CB LAWYERS Fourth Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:	MCNAB J
DATE OF ORDER:	23 JULY 2024