HABEL & FARNSWORTH (No.2) - [2021] FCCA 633

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABEL & FARNSWORTH (No.2)

[2021] FCCA 633

Catchwords:
FAMILY LAW – Practice and Procedure – undefended hearings – consideration as to whether or not the father should be granted leave to file an affidavit to rely upon at an undefended hearing in circumstances where the father is the ‘excluded party’ by the Order setting the matter down for the undefended hearing – held, leave refused.

Legislation:

Family Law Act 1975, Part VII

Family Law Rules 2004, r.11.02

Cases cited:

Tate & Tate [2000] FamCA 1040

Zane v Allan (2008) FLC 93-378
A v Z (2006) 198 FLR 152
Chranley v Smart (2012) 47 Fam LR 581

Applicant:

MS HABEL

Respondent:

MR FARNSWORTH

File Number:

BRC 8498 of 2008

Judgment of:

Judge Howard

Hearing date:

17 February 2021

Date of Last Submission:

17 February 2021

Delivered at:

Brisbane

Delivered on:

1 April 2021

REPRESENTATION

The Applicant attending as a self-represented litigant.

The Respondent attending as a self-represented litigant.

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That this matter be set down for an Undefended Hearing commencing at 9:30am on 28 June 2021 in the Federal Circuit Court of Australia at Brisbane.
That the father’s oral application made to the Court on 17 February 2021 seeking the leave of the Court to file an affidavit to be relied upon by him at the Undefended Hearing is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Habel & Farnsworth (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8498 of 2008

MS HABEL

Applicant

And

MR FARNSWORTH

Respondent

REASONS FOR JUDGMENT

This matter came on before the Court on 17 February 2021. On that day, the matter had been listed for interim hearing. The mother attended as a self-represented litigant. The mother is the applicant. The respondent father attended by telephone (self-represented) from Perth, Western Australia. The Independent Children's Lawyer in the case is Ms Anthea Walsh of Legal Aid Queensland. I delivered Reasons for Judgment ex-tempore on 17 February 2021 on what was, essentially, an application by the mother (and supported by the Independent Children's Lawyer) for the matter to proceed as an undefended hearing. I came to the conclusion that the matter should proceed as an undefended hearing but that it should be set down for hearing on another date – to give the father time to consider the precise terms of orders sought and to make oral submissions. I repeat and rely upon the Reasons for Judgment delivered ex-tempore on 17 February 2021.
On that occasion I reserved the further question as to whether or not the father would be granted leave to file an affidavit. These Reasons for Judgment primarily relate to that reserved question. This family has a long history of litigation in family law. The proceedings relate to one child, X (born in 2008) who is the child of the parties. Proceedings…

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: [2021] FCCA 633
Decision Date: 1 April 2021

CaseChat Overview and Summary

In *Habel & Farnsworth (No.2)*, Judge Howard of the Federal Circuit Court of Australia considered an application by the father for leave to file an affidavit to be relied upon at an undefended hearing. The father was the "excluded party" by the order that set the matter down for this undefended hearing.

The central legal issue before the Court was whether the father, as the excluded party, should be granted leave to file an affidavit for use at an undefended hearing.

Judge Howard dismissed the father's oral application for leave. The Court's reasoning, though not detailed in the provided text, led to the refusal of the application, resulting in the matter proceeding to an undefended hearing without the father's affidavit. The orders reflect this outcome, setting the matter down for an undefended hearing and dismissing the father's application for leave to file an affidavit.

Orders

Orders of the court

That this matter be set down for an Undefended Hearing commencing at 9:30am on 28 June 2021 in the Federal Circuit Court of Australia at Brisbane.

That the father’s oral application made to the Court on 17 February 2021 seeking the leave of the Court to file an affidavit to be relied upon by him at the Undefended Hearing is dismissed.

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

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