Gainor & Nance - [2022] FedCFamC2F 1719

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gainor & Nance [2022] FedCFamC2F 1719

File number(s): MLC 13280 of 2020

Judgment of: JUDGE BLAKE

Date of judgment: 15 December 2022

Catchwords:
FAMILY LAW – Application for default judgment – application for judgment on an undefended basis – meaning of ‘undefended’ and approach to undefended hearing – approach to take in applications for judgment in default – application to proceed on an undefended basis granted – application to seek judgment in default granted.

FAMILY LAW – Application for parenting orders – where Father has not complied with various orders to undertake drug tests and psychological testing – adverse inferences drawn against the Father – best interest considerations assessed – final parenting orders made in terms sought by the Mother.

FAMILY LAW – Application for property orders – where the mother has filed limited evidence in respect of her application for property orders – where a party is not entitled to relief sought simply because the application is not contested – where the Court needs to be satisfied any adjustment of property interests is just and equitable – where there is not sufficient evidence to enable the Court to be satisfied that the property orders sought by the Mother are just and equitable – application for final property orders dismissed – both parties given leave to file additional material in relation to the division of property

Legislation:
Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 1.33, 2.25, 2.26, 3.10(2), 10.25, 10.26, 10.26(2), 10.26(2)(c), 10.26(2)(g), 10.26(2)(h), 10.27, 15.19(2).

Cases cited:
Binns & Palister [2021] FedCFamC1F 142

Camilli & Albini [2021] FamCA 48

Kleine & Kleine [2021] FedCFamC1F 51

Lanceley & Lanceley (1994) 18 Fam LR 71

Oberlin v Infeld [2021] FamCAFC 66

Zane & Allan [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 71

Date of hearing: 19 October 2022

Place: Melbourne

Counsel for the Applicant: Ms E Clark

Solicitor for the Applicant: First Step Legal

The Respondent: No Appearance

Counsel for the Independent Children's Lawyer: Ms M Stavrakakis

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 13280 of 2020

BETWEEN:
MS GAINOR

Applicant

AND:
MR NANCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BLAKE

DATE OF ORDER:

15 DECEMBER 2022

THE COURT ORDERS THAT:
Undefended/Default Judgment
1.The Applicant Mother has permission to pursue her application for parenting and property orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) and permission to seek judgment in default under rules 10.26 and 10.27 of the Rules.

Final Parenting Orders
2.The Applicant Mother have sole parental responsibility of the children X, born in 2011, and Y, born in 2013 (‘the children’).
3.The children live with the Applicant Mother.
4.Unless otherwise agreed by the parties in writing, the children spend time with…

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 Gainor & Nance

Details

AGLC: Gainor & Nance [2022] FedCFamC2F 1719
Case: [2022] FedCFamC2F 1719
Decision Date

CaseChat Overview and Summary

In the case of Gainor & Nance, the Federal Circuit and Family Court of Australia was asked to make final orders in relation to parenting and property. The proceedings were initiated by the Mother, Ms Gainor, against the Father, Mr Nance. The Father had been unrepresented and unengaged in the proceedings for some time. The Court was asked to consider whether the Mother could proceed on an undefended basis and, if so, whether the parenting and property orders sought by the Mother should be made. The Court found that the Father had not engaged in the proceedings in any meaningful way and had failed to comply with a number of orders of the Court. The Court was satisfied that the Father had been given an opportunity to participate in the proceedings and that the Mother's application to proceed on an undefended basis should be granted. In relation to the parenting orders, the Court found that it was in the best interests of the children for the Mother to have sole parental responsibility and for the children to live with her. The Court made orders for the children to have supervised time with the Father, subject to a number of conditions, and orders for the Father to communicate with the children. In relation to the property orders, the Court found that there was insufficient evidence before it to enable it to be satisfied that any property order it might make would be just and equitable. The Court declined to make any final property orders but permitted both parties to file additional material in relation to the division of property. The Court listed the matter for further mention on 8 March 2023.

Orders