Hiron & Tourle - [2021] FCCA 1270

FEDERAL CIRCUIT COURT OF AUSTRALIA
Hiron & Tourle [2021] FCCA 1270

File number: MLC 10835 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 May 2021

Catchwords: FAMILY LAW – Parenting – property – where father seeks for matter to proceed undefended – where mother has previously failed to participate in proceedings – where mother has now attended – where children are spending no time with the mother – allegations of family violence – matrimonial home division required – time allowed for mother to file – orders made.

Legislation:
Family Law Act 1975 (Cth) 64B

Family Law Rules 2004 (Cth) rr 1.04, 11.02

Federal Circuit Court Rules 2001 (Cth) rr 1.03, 1.05, 1.06

Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Rice & Asplund [1978] FamCAFC 128
Singam & Moffrey (2015) FLC ¶93-641
Zane & Allan (2008) FLC ¶93-378

Number of paragraphs: 36

Date of hearing: 24 May 2021

Place: Melbourne

Counsel for the Applicant: Ms K Paull

Solicitor for the Applicant: Cohrssen Partners Pty Ltd

The Respondent: Appeared in Person

Solicitor for the Independent Children's Lawyer: Mr D Lampe of Lampe Family Lawyers
ORDERS

MLC 10835 of 2020

BETWEEN:
MR HIRON

Applicant

AND:
MS TOURLE

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 MAY 2021

THE COURT ORDERS THAT:
1.All extant applications be adjourned to a date to be fixed and to be relisted on no more than 14 days' notice by the Court.
2.Any further affidavit to be filed by the Mother within 28 days of this day (21 June 2021) including:
(a)Any affidavit or report relating to the Mother's mental health;
(b)Any affidavit relating to the value of the home the parties resided in during their relationship at A Street Suburb B;
(c)Any affidavit relating to her financial circumstances and/or relevant to the issue of property determination.

3.The Father's costs for this day be reserved.

AND THE COURT NOTES THAT:
A.The Father's application for the matter to proceed undefended has not been dealt with.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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…

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 Hiron & Tourle

Details

AGLC: Hiron & Tourle [2021] FCCA 1270
Case: [2021] FCCA 1270
Decision Date: 24 May 2021

CaseChat Overview and Summary

In the matter of MLC 10835 of 2020, Mr Hiron was the applicant and Ms Tourle was the respondent before Judge O'Shannessy. The proceedings concerned applications within a family law matter, with the specific nature of the underlying dispute not fully detailed in the provided order.

The court was required to determine the future conduct of the proceedings, including the adjournment of extant applications and the filing of further evidence by the respondent mother. The court also needed to consider the father's application for the matter to proceed undefended, which had not yet been determined.

Judge O'Shannessy ordered that all extant applications be adjourned to a date to be fixed, with relisting on 14 days' notice. The respondent mother was granted 28 days to file further affidavits concerning her mental health, the value of the former matrimonial home, and her financial circumstances relevant to property determination. The father's costs for the day were reserved. The court also provided important information regarding the prohibition of unrepresented parties cross-examining each other in cases involving allegations of family violence under section 102NA of the *Family Law Act 1975* (Cth), and the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Orders

Orders of the court

MLC 10835 of 2020

BETWEEN:

MR HIRON

Applicant

AND:

MS TOURLE

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 MAY 2021

THE COURT ORDERS THAT:

1. All extant applications be adjourned to a date to be fixed and to be relisted on no more than 14 days' notice by the Court.

2. Any further affidavit to be filed by the Mother within 28 days of this day (21 June 2021) including:

(a) Any affidavit or report relating to the Mother's mental health;

(b) Any affidavit relating to the value of the home the parties resided in during their relationship at A Street Suburb B;

3. The Father's costs for this day be reserved.

AND THE COURT NOTES THAT:

A. The Father's application for the matter to proceed undefended has not been dealt with.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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:	MLC 10835 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	24 May 2021
Catchwords:	FAMILY LAW – Parenting – property – where father seeks for matter to proceed undefended – where mother has previously failed to participate in proceedings – where mother has now attended – where children are spending no time with the mother – allegations of family violence – matrimonial home division required – time allowed for mother to file – orders made.
Legislation:	Family Law Act 1975 (Cth) 64B Family Law Rules 2004 (Cth) rr 1.04, 11.02 Federal Circuit Court Rules 2001 (Cth) rr 1.03, 1.05, 1.06
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Rice & Asplund [1978] FamCAFC 128 Singam & Moffrey (2015) FLC ¶93-641 Zane & Allan (2008) FLC ¶93-378
Number of paragraphs:	36
Date of hearing:	24 May 2021
Place:	Melbourne
Counsel for the Applicant:	Ms K Paull
Solicitor for the Applicant:	Cohrssen Partners Pty Ltd
The Respondent:	Appeared in Person
Solicitor for the Independent Children's Lawyer:	Mr D Lampe of Lampe Family Lawyers

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 MAY 2021