Ester & Lishman (No 2) - [2024] FedCFamC2F 1673

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ester & Lishman (No 2) [2024] FedCFamC2F 1673

File number: SYC 1736 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 21 November 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court has ordered that the parties each attend the final hearing in person – Application for father to give evidence remotely – Where the father lives in Country B – Consideration of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father failed to file his application for leave to appear electronically within 28 days of the final hearing – Where the Court required the father to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the father having done so – Application in a Proceeding for the father to remotely give evidence dismissed.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.16, 15.17

Cases cited: Agbabiaka (Evidence from Abroad; Nare Guidance) [2021] UKUT 286

Division: Division 2 Family Law

Number of paragraphs: 13

Date of hearing: 21 November 2024

Place: Sydney (via videolink)

Counsel for the Applicant: Ms Bateman

Solicitor for the Applicant: Supreme Justice Lawyers

Solicitor for the Respondent: Ms Kuanpoth, Marsdens Law Group

Solicitor for the Independent Children’s Lawyer: Ms Al Hashimi, Hillcrest Family Lawyers Pty Ltd
ORDERS

SYC 1736 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ESTER

Applicant

AND:
MS LISHMAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr Ester on 13 November 2024 is dismissed.
2.The Court confirms the commencement of the final hearing of this matter at 10.00 am on 26 November 2024.

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 this Court under the pseudonym Lishman & Ester has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:

In these proceedings, orders were made on 3 June 2024 setting the matter down for final hearing in person on 25 November 2025. Notation…

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 Ester & Lishman (No 2)

Details

AGLC: Ester & Lishman (No 2) [2024] FedCFamC2F 1673
Case: [2024] FedCFamC2F 1673
Decision Date: 21 November 2024

CaseChat Overview and Summary

The case of Ester & Lishman (No 2) involved a dispute between Mr Ester and Ms Lishman, which was being heard in Division 2 of the Federal Circuit and Family Court of Australia. The matter concerned the attendance of Mr Ester at the final hearing of a family law proceeding. The Court had previously ordered that both parties attend the final hearing in person. Mr Ester sought leave to give his evidence remotely, as he resided in Country B. This request was based on the provisions of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, Mr Ester failed to file his application within the required 28 days of the final hearing date, and there was no evidence that he had made inquiries to determine the foreign government's stance on taking evidence by electronic communication.

The court was required to consider the timeliness of Mr Ester's application and whether it complied with the procedural rules. The Court noted that the failure to file the application within the stipulated time frame was a significant procedural shortcoming. Furthermore, the absence of any evidence that Mr Ester had made the necessary inquiries regarding the foreign government's acceptance of electronic evidence was a critical oversight. The court dismissed Mr Ester's application to give evidence remotely. The Court also confirmed the commencement of the final hearing at 10.00 am on 26 November 2024.

The court's decision was based on the procedural requirements outlined in the rules and the lack of compliance by Mr Ester. The dismissal of the application meant that Mr Ester was required to attend the final hearing in person. The court emphasised the importance of adhering to procedural rules and making necessary inquiries regarding foreign jurisdictions when seeking to give evidence remotely. The final orders confirmed the dismissal of Mr Ester's application and set the date for the final hearing.

Orders

Orders of the court

SYC 1736 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ESTER

Applicant

AND:

MS LISHMAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by Mr Ester on 13 November 2024 is dismissed.

2. The Court confirms the commencement of the final hearing of this matter at 10.00 am on 26 November 2024.

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:	SYC 1736 of 2022
Judgment of:	MCCLELLAND DCJ
Date of judgment:	21 November 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court has ordered that the parties each attend the final hearing in person – Application for father to give evidence remotely – Where the father lives in Country B – Consideration of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father failed to file his application for leave to appear electronically within 28 days of the final hearing – Where the Court required the father to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the father having done so – Application in a Proceeding for the father to remotely give evidence dismissed.
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.16, 15.17
Cases cited:	Agbabiaka (Evidence from Abroad; Nare Guidance) [2021] UKUT 286
Division:	Division 2 Family Law
Number of paragraphs:	13
Date of hearing:	21 November 2024
Place:	Sydney (via videolink)
Counsel for the Applicant:	Ms Bateman
Solicitor for the Applicant:	Supreme Justice Lawyers
Solicitor for the Respondent:	Ms Kuanpoth, Marsdens Law Group
Solicitor for the Independent Children’s Lawyer:	Ms Al Hashimi, Hillcrest Family Lawyers Pty Ltd

SYC 1736 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ESTER Applicant
AND:	MS LISHMAN Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	21 NOVEMBER 2024