Garwood & Shipton (No 6) - [2023] FedCFamC1F 813

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 6) [2023] FedCFamC1F 813

File number(s): ADC 4995 of 2018

Judgment of: KARI J

Date of judgment: 15 September 2023

Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – Ex tempore reasons - Where the respondent mother’s case outline document was filed at 11.53 am and the hearing was scheduled to commence at 11.30 am – Where case outline documents were not ordered to be filed – Where the case outline document had not been provided to the father or his legal representatives in advance of the hearing - The case outline document was not accepted by the court

Division: Division 1 First Instance

Number of paragraphs: 5

Date of hearing: 15 September 2023

Place: Adelaide

Counsel for the Applicant: Mr Manetta

Solicitor for the Applicant: Culshaw Bishop Lawyers

Counsel for the Respondent: Mr Cox SC

Counsel for the Respondent: Ms Hume

Solicitor for the Respondent: Angela Ferdinandy
ORDERS

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GARWOOD

Applicant

AND:
MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

15 SEPTEMBER 2023

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:

I am not going to have regard to the Case Outline that has been prepared on behalf of the respondent.
The Case Outline that the respondent asks the court to receive was filed today. It has now appeared on my digital Court file. The court seal indicating the timing of filing of that document bears a time stamp of 11.53 am. This matter was scheduled to be heard at 11.30 am.
While I accept that, oftentimes, the preparation of outlines by counsel is of assistance to the court, that is only the case when the outlines are filed in advance of the hearing, giving not only myself the opportunity to read and understand the submissions that are to be put before coming on to the bench, but, importantly, if nothing more than procedural fairness to the opponent, giving them a chance to understand the submissions as well.
I also pause here to note further matters which arose during the exchange with counsel…

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.

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Details

Case: [2023] FedCFamC1F 813
Decision Date: 15 September 2023

CaseChat Overview and Summary

The matter of Garwood & Shipton (No 6) involved a dispute between Mr. Garwood and Ms. Shipton before the Federal Circuit and Family Court of Australia. The case revolved around procedural matters, specifically concerning the filing and acceptance of case outline documents, which are pivotal in family law proceedings for delineating the issues and evidence in dispute. The respondent mother, Ms. Shipton, filed her case outline document just before the hearing was scheduled to commence. This late filing occurred despite no prior order mandating such filings and without providing the document to Mr. Garwood or his legal representatives beforehand. The court had to determine whether the late filing and lack of prior disclosure were grounds to reject the document.

The primary legal issue before the court was whether the late filing of the respondent's case outline document, coupled with the absence of prior disclosure, warranted its non-acceptance. The court had to balance the procedural rules and the principles of fairness and justice, particularly considering the impact on the applicant's right to a fair hearing and adequate preparation. The Federal Circuit and Family Court of Australia examined the circumstances under which such documents are typically expected and the potential prejudice caused by the late filing and lack of disclosure. The court also considered the procedural fairness to both parties, ensuring that neither party was unduly disadvantaged.

The court, in its reasons, held that the late filing and non-disclosure of the case outline document were significant procedural shortcomings. It concluded that the respondent's failure to adhere to the expected procedural norms, particularly in the absence of any court order requiring such filings, prejudiced the applicant's ability to prepare for the hearing. Consequently, the court decided not to accept the case outline document, deeming it a procedural misstep that undermined the fairness of the proceedings. The court's decision underscored the importance of adhering to procedural guidelines in family law matters to ensure that hearings are conducted in a fair and just manner. The court's ruling was intended to uphold procedural fairness and prevent the misuse of procedural mechanisms to gain an unfair advantage in family law disputes.

Orders

Orders of the court

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GARWOOD

Applicant

AND:

MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

15 SEPTEMBER 2023

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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(s):	ADC 4995 of 2018
Judgment of:	KARI J
Date of judgment:	15 September 2023
Catchwords:	FAMILY LAW - PRACTICE AND PROCEDURE – Ex tempore reasons - Where the respondent mother’s case outline document was filed at 11.53 am and the hearing was scheduled to commence at 11.30 am – Where case outline documents were not ordered to be filed – Where the case outline document had not been provided to the father or his legal representatives in advance of the hearing - The case outline document was not accepted by the court
Division:	Division 1 First Instance
Number of paragraphs:	5
Date of hearing:	15 September 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Manetta
Solicitor for the Applicant:	Culshaw Bishop Lawyers
Counsel for the Respondent:	Mr Cox SC
Counsel for the Respondent:	Ms Hume
Solicitor for the Respondent:	Angela Ferdinandy

ADC 4995 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GARWOOD Applicant
AND:	MS SHIPTON Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	15 SEPTEMBER 2023