HILLS & CALDWELL - [2020] FamCA 574

FAMILY COURT OF AUSTRALIA

HILLS & CALDWELL

[2020] FamCA 574

FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where none of the provisions in s102NA(1)(c)(i), (ii) or (iii) applies – Where the issues to be determined at final hearing are limited – Where the Court declines to exercise its discretion – Application dismissed.

Family Law Act 1975 (Cth) s 102NA.

APPLICANT:

Mr Hills

RESPONDENT:

Ms Caldwell

INDEPENDENT CHILDREN’S LAWYER:

Doolan Wagner Family Lawyers

FILE NUMBER:

SYC

7626

2015

DATE DELIVERED:

17 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

IN CHAMBERS:

17 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Doolan Wagner Family Lawyers

Orders

IT IS ORDERED

That the oral application of the respondent for an order pursuant to section 102NA of the Family Law Act 1975 (Cth) is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Caldwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7626 of 2015

Mr Hills

Applicant

And

Ms Caldwell

Respondent

REASONS FOR JUDGMENT

Mr Hills (“the father”) and Ms Caldwell (“the mother”) are engaged in parenting proceedings relating to two of their three children, Y aged 14 and Z aged 12 years. They have agreed that no orders will be made in relation their oldest child.
In the substantive proceedings the father represents himself. The mother has made allegations of family violence such as, it is submitted, to engage the provisions relating to the cross-examination of victims by perpetrators of violence.
The issue to be determined here is whether an order should be made pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) as both the mother and the Independent Children’s Lawyer (“ICL”) submit.
The father, the mother and the ICL have all filed written submissions in relation to this issue and it is agreed that the matter will be determined on the papers.
The issue was raised by the mother’s lawyer when the matter was listed before me for trial directions on 1 July 2020. On that day, orders were made that the parties file and serve their trial affidavits by 31 July 2020 and that the matter be listed in a call-over on 14 August 2020 for the allocation of hearing dates.
It is not in dispute that, in the…

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 HILLS & CALDWELL

Details

AGLC: HILLS & CALDWELL [2020] FamCA 574
Case: [2020] FamCA 574
Decision Date: 17 July 2020

CaseChat Overview and Summary

The applicant, Hills, sought an order under section 102NA of the *Family Law Act 1975* (Cth) from Rees J. The respondent opposed this application. The core of the dispute concerned whether the court should exercise its discretion to make an order under section 102NA, which deals with the dismissal of applications where proceedings are frivolous, vexatious, or an abuse of process.

The primary legal issue before the court was whether the circumstances of the case warranted the dismissal of the proceedings under section 102NA. Specifically, the court had to determine if the application met the criteria for dismissal, and if so, whether it should exercise its discretion to do so. The court noted that none of the specific grounds listed in section 102NA(1)(c)(i), (ii), or (iii) were applicable, and that the issues to be determined at the final hearing were limited.

Rees J considered the application and the limited nature of the issues remaining for final determination. The court concluded that it should decline to exercise its discretion to make an order under section 102NA. Consequently, the oral application made by the respondent for an order pursuant to section 102NA of the *Family Law Act 1975* was dismissed.

Orders

Orders of the court

IT IS ORDERED

That the oral application of the respondent for an order pursuant to section 102NA of the Family Law Act 1975 (Cth) is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.