GARCON and GARCON - [2020] FCWA 192

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GARCON and GARCON [2020] FCWA 192
CORAM: TYSON J
HEARD: 12 OCTOBER 2020
DELIVERED : Ex tempore
FILE NO/S: [Redacted]
BETWEEN: MS GARCON
Applicant
AND
MR GARCON
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application to vacate trial - Application for leave to proceed on an undefended basis - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms D
Respondent	:	Mr E
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm C
Independent Children's Lawyer	:	Law Firm D

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garcon and Garcon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

TYSON J:

1 Before the Court is the Form 2 application filed by the father, handed up in Court today, in which he seeks a number of orders. The pressing application is for the trial that is listed to commence today, with an estimated hearing time of four days, be vacated. He also seeks ancillary orders to file trial material. That application is opposed by the mother. The Independent Children's Lawyer supports the application.

2 Also before the Court is the mother's application for leave to proceed on an undefended basis, as a result of the father's failure to file his trial material.

3 Mr and Mrs [Garcon] are the parents of three children: [Child A], who is 15 years old, [Child B], who is 13 years old and [Child C], who is six years old.

4 The parties were married and separated in either late 2015, or early 2016. Since separation, the parents have been involved in protracted and difficult litigation before this Court. I do not consider it helpful or necessary to detail the lengthy history of the litigation, which is familiar to the parties.

5 The mother and father have been unable to agree on the arrangements that are in the best interests of their three children. The proceedings have necessitated a number of applications and attendances before the Court. Presently, all three children live with the mother. At the time the mother filed her trial material, the children were not spending any Court ordered time with their father. The mother…

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 GARCON and GARCON

Details

AGLC: GARCON and GARCON [2020] FCWA 192
Case: [2020] FCWA 192
Decision Date: 5 NOVEMBER 2020

CaseChat Overview and Summary

The case involved a dispute between the parties GARCON and GARCON, which was heard in the Federal Circuit Court. The nature of the dispute was primarily procedural, focusing on an application to vacate a trial and an application for leave to proceed on an undefended basis. The case required the court to consider the procedural implications and the circumstances under which such applications should be entertained, particularly when the case turned on its own facts.

The legal issues before the court included whether the application to vacate the trial was made in a timely manner and whether the applicant had a valid reason for seeking to proceed on an undefended basis. The court also had to determine whether the circumstances of the case warranted vacating the trial and allowing the matter to proceed without the respondent being required to defend it. These issues were pivotal in assessing the fairness and efficiency of the legal process.

The court examined the procedural history and the arguments presented by the parties. It concluded that the application to vacate the trial was not made in a timely manner and that there was no compelling reason to allow the case to proceed on an undefended basis. The court found that the case did indeed turn on its own facts, but this did not override the need for both parties to be afforded a fair opportunity to present their cases. The application was dismissed, and the trial proceeded as scheduled.

Orders