Hallan & Alvery - [2025] FedCFamC1F 260

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hallan & Alvery [2025] FedCFamC1F 260

File number(s): MLC 11373 of 2023

Judgment of: CARTER J

Date of judgment: 24 April 2025

Catchwords: FAMILY LAW – PARENTING – Where the final hearing was previously adjourned to enable the mother to file her trial material – Where the matter was mentioned to determine whether it was ready to proceed to trial – Where the mother has still not filed her trial material – Where the mother’s representative made an application requesting a further extension for the filing of her trial materials – Where the application was opposed by counsel for the father and the Independent Children’s Lawyer – Application denied.

Legislation:
Family Law Act 1975 (Cth) s 102

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Cases cited:
Pelkas & Dellis [2023] FedCFamC1A 195

Rowe v Stoltze (2013) 45 WAR 116

Strahan & Strahan [2019] FamCAFC 31

Division: Division 1 First Instance

Number of paragraphs: 35

Date of hearing: 22 April 2025

Place: Melbourne

Counsel for the Applicant: Mr Dickson KC

Solicitor for the Applicant: Lander & Rogers

Solicitor for the Respondent: Gad & Co Lawyers

Counsel for the Independent Children's Lawyer: Ms Brennan

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

MLC 11373 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HALLAN

Applicant

AND:
MS ALVERY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

22 APRIL 2025

THE COURT ORDERS THAT:
1.At the final hearing of the matter commencing 5 May 2025, the respondent’s participation will be limited to the cross examination of witnesses and the making of submissions.
2.The respondent and her representative are granted leave to attend electronically at the final hearing commencing 5 May 2025.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER

This matter is listed for a final hearing to commence on 5 May 2025. The matter was listed on 22 April 2025 for mention, in circumstances where the respondent had previously failed to file trial material.
At Court on 22 April 2025, the respondent sought a further extension to file her trial material as she…

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 Hallan & Alvery

Details

AGLC: Hallan & Alvery [2025] FedCFamC1F 260
Case: [2025] FedCFamC1F 260
Decision Date: 24 April 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a matter involving a dispute between Mr Hallan and Ms Alvery regarding parenting arrangements for their child. The court was required to determine whether to grant Ms Alvery an extension for filing her trial material, which would have allowed her to present evidence at the final hearing. The matter was initially adjourned to enable Ms Alvery to file her trial material, but she had not complied with the court's orders, leading to the present application. The primary legal issue before the court was whether to grant a further extension for Ms Alvery to file her trial material, despite her history of non-compliance with court orders.

The court considered the respondent's history of non-compliance with court orders, noting that she had not filed any documents despite being given multiple opportunities to do so. The court emphasised that it was unlikely to grant any further adjournments and that the matter needed to proceed to finalisation. The court was also influenced by the fact that the applicant had substantially complied with the filing requirements and was ready for the final hearing to commence. Given these circumstances, the court determined that it was not prepared to make orders to extend the time by which Ms Alvery was to file her trial material.

As a result, Ms Alvery's participation in the final hearing was limited to cross-examining witnesses and making submissions, as she would not be able to adduce evidence at the hearing. The court also granted Ms Alvery and her representative leave to attend the final hearing electronically. This decision underscores the importance of compliance with court orders in family law proceedings and highlights the court's reluctance to grant further extensions in cases of persistent non-compliance.

Orders

Orders of the court

MLC 11373 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HALLAN

Applicant

AND:

MS ALVERY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

22 APRIL 2025

THE COURT ORDERS THAT:

1. At the final hearing of the matter commencing 5 May 2025, the respondent’s participation will be limited to the cross examination of witnesses and the making of submissions.

2. The respondent and her representative are granted leave to attend electronically at the final hearing commencing 5 May 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reason that follow I am not prepared to make orders to once again extend the time by which the respondent is to file her material. Accordingly, the respondent will not be able to adduce evidence at the final hearing and her participation will be limited to cross examining the witnesses and making submissions. BACKGROUND The respondent’s failure to file trial material has extended over five months. At a hearing on 11 November 2024 the parties attended before Alstergren CJ. Orders were made listing the matter for final hearing on 3 February 2025, for the applicant to file his trial material by 23 December 2024, and for the respondent to file her Amended Response by 18 November 2024 and her trial material by 6 January 2025. The applicant was one day late in complying with the orders but was otherwise ready for the final hearing to commence on 3 February 2025. However, the respondent had not filed any documents at all. The matter came before me on 28 January 2025. The respondent sought an adjournment of the final hearing and an extension of time to file a Response, her trial affidavit and affidavits of supporting witnesses. At that time the applicant represented by senior counsel vigorously opposed the granting of an adjournment, pointing to the respondent’s history of non-compliance with Court orders – and noting his own client’s substantial compliance with the filing of material and his readiness for the matter to proceed. On balance I determined it was appropriate to grant the respondent an adjournment. The final hearing was relisted to commence on 5 May 2025. The respondent was ordered to file an Amended Response, her trial affidavit, a Financial Statement and material from supporting witnesses by 7 April 2025. The applicant then had to file and serve any affidavit in reply no later than 22 April 2025. In the course of my reasons for judgment given on 28 January 2025, I stated it was most unlikely any further adjournment would be contemplated as the matter needed to proceed to finalisation as soon as practicable. I also said that if material was not filed by the respondent in accordance with the new timetable for filing it was most likely leave would be granted to enable the matter to proceed undefended – or the respondent would be unable to adduce evidence and limited to cross examination of the various witnesses and making submissions. Indeed, the orders I made on 28 January 2025 included notations to that effect. The respondent has not complied with the orders for filing at all. She has not filed an amended Response. She has not filed a trial affidavit. She has not filed a Financial Statement. She has not filed any affidavits from supporting witnesses. SUBMISSIONS ON 22 APRIL 2025 Mr Gad appeared on behalf of the respondent at the mention on 22 April 2025. He had filed a Notice of Address for Service on 18 March 2025. He was unable to advise when funding pursuant to s 102NA of the Family Law Act 1975 (Cth) was confirmed, although he conceded it was likely prior to him filing a Notice of Address for Service.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 11373 of 2023
Judgment of:	CARTER J
Date of judgment:	24 April 2025
Catchwords:	FAMILY LAW – PARENTING – Where the final hearing was previously adjourned to enable the mother to file her trial material – Where the matter was mentioned to determine whether it was ready to proceed to trial – Where the mother has still not filed her trial material – Where the mother’s representative made an application requesting a further extension for the filing of her trial materials – Where the application was opposed by counsel for the father and the Independent Children’s Lawyer – Application denied.
Legislation:	Family Law Act 1975 (Cth) s 102 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited:	Pelkas & Dellis [2023] FedCFamC1A 195 Rowe v Stoltze (2013) 45 WAR 116 Strahan & Strahan [2019] FamCAFC 31
Division:	Division 1 First Instance
Number of paragraphs:	35
Date of hearing:	22 April 2025
Place:	Melbourne
Counsel for the Applicant:	Mr Dickson KC
Solicitor for the Applicant:	Lander & Rogers
Solicitor for the Respondent:	Gad & Co Lawyers
Counsel for the Independent Children's Lawyer:	Ms Brennan
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 11373 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HALLAN Applicant
AND:	MS ALVERY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	22 APRIL 2025