Fewster and Drake - [2018] FCCA 3194

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEWSTER & DRAKE

[2018] FCCA 3194

Catchwords:
FAMILY LAW – Parenting and property – transfer to the Family Court of Australia – where the proceedings have become more complex since transfer from the Family Court of Australia to the Federal Circuit Court of Australia.

Legislation:

Family Law Act 1975 ss.69W, 79(9)

Federal Circuit Court Rules 2001 rr.8.02, 13.03B, pt.14
Child Support (Assessment) Act 1989, ss.107, 143
Conveyancing Act 1919
Real Property Act 1900

Cases cited:

Gowrie & Gowrie [2017] FCCA 3328
Gordon & Gordon [2015] FamCA 616

Applicant:

MR FEWSTER

Respondent:

MS DRAKE

File Number:

PAC 3945 of 2014

Judgment of:

Judge Harman

Hearing date:

13 July 2018

Date of Last Submission:

13 July 2018

Delivered at:

Parramatta

Delivered on:

13 July 2018

REPRESENTATION

Solicitors for the Applicant:

Ms Manfre

Solicitors for the Respondent:

Mr O’Reily

ORDERS

Transfer the proceedings to the Family Court of Australia sitting at Parramatta.
Request that a Registrar give attention to the directions for the conduct of the proceedings as soon as possible.
IT IS NOTED that a Judgment has been delivered with respect to the remittal of the proceedings to the Family Court of Australia and, accordingly, should those reasons be required, then a request should be made of my Associate and the reasons will be settled as soon as practicable in light of the present workload.

IT IS NOTED that publication of this judgment under the pseudonym Fewster & Drake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3945 of 2014

MR FEWSTER

Applicant

And

MS DRAKE

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today for a second Court event.
Whilst I have referred the matter as coming before this Court for the second Court event, if one were to consider the address of the matter in prior iterations before the Family Court of Australia and the Full Court of the Family Court of Australia, the matter has occupied approximately two dozen Court appearances.
The parties to the proceedings are Mr Fewster, the Applicant in the proceedings, and Ms Drake, the Respondent.
The parties were previously married.
There are two children of the relationship. Those children are the subject of parenting Orders made by consent November 2015.
The history of the matter can be set out briefly. The matter was commenced by the filing of an Application for parenting Orders. That Application was filed in the Federal Circuit Court of Australia on 20 August 2014. From a brief examination of that document, it seeks a lengthy list of Orders going to some seven or eight pages. Thus, it has not been considered in its totality.
The matter first came before the Federal Circuit Court of Australia on 29 September 2014. At that time, a Response had not been filed. A number of interim parenting Orders were made by consent and the matter adjourned with directions for the filing of a Response.
A Response…

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 Fewster and Drake

Details

AGLC: Fewster and Drake [2018] FCCA 3194
Case: [2018] FCCA 3194
Decision Date: 13 July 2018

CaseChat Overview and Summary

In *Fewster and Drake*, heard by Judge Harman, the proceedings concerned a dispute between the parties that required determination by the court. The specific nature of the dispute is not detailed in the provided text, but the court's orders indicate it falls within the jurisdiction of the Family Court of Australia.

The central legal issue before the court was the appropriate forum for the resolution of the parties' dispute. This involved considering whether the matter should be heard in the Family Court of Australia and, if so, how the proceedings should be managed to ensure efficient and timely progress.

Judge Harman ordered that the proceedings be transferred to the Family Court of Australia, specifically to its sitting at Parramatta. Furthermore, the court requested that a Registrar give prompt attention to the directions for the conduct of these proceedings, indicating a need for immediate case management.

Orders

Orders of the court

Transfer the proceedings to the Family Court of Australia sitting at Parramatta.

Request that a Registrar give attention to the directions for the conduct of the proceedings as soon as possible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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