JEFFCOTT & JEFFCOTT - [2021] FCCA 643

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFCOTT & JEFFCOTT

[2021] FCCA 643

Catchwords:
FAMILY LAW – Application for summary dismissal – no reasonable prospects of successfully prosecuting proceedings – matters for consideration – application for summary dismissal successful – no appearance by the applicant in the substantive proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 79A

Federal Circuit Court Rules 2001, r.6.16
Federal Circuit Court of Australia Act 1999 (Cth) s.17A

Cases cited:

Ritter v Ritter [2020] FamCAFC 86

Stativa v Stativa [2015] FamCAFC 170

Lindon v The Commonwealth (No.2) (1996) 70 ALR 541

Bigg v Suzi (1998) 22 Fam LR 700

Applicant:

MS JEFFCOTT

Respondent:

MR JEFFCOTT

File Number:

BRC 678 of 2016

Judgment of:

Judge Howard

Hearing date:

5 February 2021

Date of Last Submission:

5 February 2021

Delivered at:

Brisbane

Delivered on:

5 February 2021

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:

Lawrence Sinclair Lawyers

ORDERS

That the Final Hearing dates of 17 and 18 February 2021 shall be vacated.
That the Wife’s Initiating Application filed 25 September 2019 and the Wife’s Amended Initiating Application filed 23 February 2020 be dismissed.
That all outstanding applications are dismissed.

IT IS NOTED:

(A)These Orders were made in the absence of the wife and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules2001 the wife may apply to have these Orders set aside.
(B)That paragraph 1 of this Order was made on 5 February 2021. Paragraphs 2 and 3 of this Order have been made on 1 April 2021.

IT IS NOTED that publication of this judgment under the pseudonym Jeffcott & Jeffcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 678 of 2016

MS JEFFCOTT

Applicant

And

MR JEFFCOTT

Respondent

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 5 February 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

The matter before the Court today is an application for summary dismissal. The applicant for the application for summary dismissal is Mr Jeffcott. He is the respondent to the substantive proceedings. The applicant in the substantive proceedings is his former wife, Ms Jeffcott. Ms Jeffcott filed an application in September 2019 because, I apprehend, she was unhappy with some final property orders that had been made in 2017 after the couple had separated on a final basis.
Those final property orders were, in fact, made on 11 August 2017 by his Honour Judge Baumann (as he then was). Those orders were made by his Honour with the consent of the parties. Both of the parties were represented by lawyers on that occasion. The husband’s lawyer at that time was D Law Firm. The respondent’s lawyer was E Law Firm, otherwise known as E Law Firm.
On 25 September 2019 the applicant in the substantive proceedings, Ms Jeffcott, filed…

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 JEFFCOTT & JEFFCOTT

Details

AGLC: JEFFCOTT & JEFFCOTT [2021] FCCA 643
Case: [2021] FCCA 643
Decision Date: 5 February 2021

CaseChat Overview and Summary

In *Jeffcott & Jeffcott*, Judge Howard of the Family Court of Australia considered an application for summary dismissal of proceedings. The dispute concerned family law matters, and the application for summary dismissal was brought on the basis that the wife, the applicant in the substantive proceedings, had no reasonable prospects of successfully prosecuting her case.

The central legal issue before the court was whether the wife's initiating applications should be summarily dismissed due to a lack of reasonable prospects of success. This required the court to assess the merits of the wife's case in light of the circumstances presented, including her failure to appear in the substantive proceedings.

Judge Howard found that the application for summary dismissal was successful. The reasoning for this outcome was not detailed in the provided text, but it is evident that the court concluded the wife's proceedings lacked a reasonable prospect of success, leading to the dismissal of her applications.

Consequently, the court ordered that the final hearing dates of 17 and 18 February 2021 be vacated. Furthermore, the wife's Initiating Application filed on 25 September 2019 and her Amended Initiating Application filed on 23 February 2020 were dismissed, as were all other outstanding applications.

Orders

Orders of the court

That the Final Hearing dates of 17 and 18 February 2021 shall be vacated.

That the Wife’s Initiating Application filed 25 September 2019 and the Wife’s Amended Initiating Application filed 23 February 2020 be dismissed.

That all outstanding applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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