JEFFS & MARSHALL (No.4) - [2019] FCCA 174

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFS & MARSHALL (No.4)

[2019] FCCA 174

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – mother makes oral application seeking permission to defend proceedings part way through part-heard trial – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Federal Circuit Court Rules 2001 r.16.05(2).

Cases cited:

Scheibner-Grover (now Grossman) and Ryan (1987) FLC 91-833

Taylor v. Taylor (1979) FLC 90-674

Allesch v Maunz (2000) 203 CLR 172

Cooke & Morton [2018] FamCAFC 9

Jeffs & Marshall [2018] FCCA 3185

Tate & Tate [2000] FamCA

Harper & Harper [2016] FCCA 1603

Clifford & Mountford [2006] FMCAFam 450

Barbey & Tuttle [2013] FamCAFC 44

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Applicant:

MS JEFFS

Respondent:

MR MARSHALL

File Number:

MLC 7616 of 2016

Judgment of:

Judge Harland

Hearing date:

19 November 2018

Date of Last Submission:

19 November 2018

Delivered at:

Melbourne

Delivered on:

31 January 2019

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Cathleen Corridon & Associates

Counsel for the Respondent:

Ms Healey

Solicitors for the Respondent:	CBD Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Devine
Solicitors for the Independent Children's Lawyer:	Altavilla Family Law

ORDERS

The mother’s oral application to be permitted to proceed on a defended basis be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7616 of 2016

MS JEFFS

Applicant

And

MR MARSHALL

Respondent

REASONS FOR JUDGMENT

This is a difficult parenting matter concerning the best interests of [X], born … 2009, and [Y], born …2013. There have been numerous appearances and trial dates in this matter.
Due to the serious risk issues in this case, it has been necessary to list the trial over several non-consecutive days in priority to other cases that have been waiting for trial dates for many months. The difficulty has been compounded by the false starts due to the mother’s non-attendance on multiple occasions.
What is unusual about this trial is that whilst it has proceeded on an undefended basis as a far as the mother’s case is concerned, because of the risk issues and the history of these proceedings, the trial has nonetheless proceeded over the course of many days as the Court could not be satisfied that the orders sought by the father were in the children’s best interests without hearing evidence. At the time of the mother’s oral application, the family report writer had given evidence first and was cross-examined for a day and a half. The father had been cross-examined for a day.
On the third day of the trial the mother made an oral application effectively seeking that the order made on 7 November 2018 be set aside and that she be able to defend the proceedings.
After hearing that application at that time on 19 November 2018,…

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 JEFFS & MARSHALL (No.4)

Details

AGLC: JEFFS & MARSHALL (No.4) [2019] FCCA 174
Case: [2019] FCCA 174
Decision Date: 31 January 2019

CaseChat Overview and Summary

In the matter of *JEFFS & MARSHALL (No.4)*, heard before Judge Harland, the dispute concerned an undefended family law hearing. During the course of this part-heard trial, the mother made an oral application seeking permission to defend the proceedings.

The central legal issue before the court was whether to grant the mother's application to convert the undefended hearing into a defended one part way through the trial.

Judge Harland dismissed the mother's application. The court's reasoning, though not detailed in the provided text, implicitly prioritised the procedural integrity and efficiency of the ongoing trial. The decision suggests that such a significant alteration to the nature of the proceedings, particularly at an advanced stage, was not permissible.

Consequently, the mother's oral application to be permitted to proceed on a defended basis was dismissed.

Orders

Orders of the court

The mother’s oral application to be permitted to proceed on a defended basis be 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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