Jenna & Jenna (No 2) - [2024] FedCFamC1F 667

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jenna & Jenna (No 2) [2024] FedCFamC1F 667

File number(s): SYC 5611 of 2020

Judgment of: HARPER J

Date of judgment: 2 October 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a Proceeding – Where the husband files an Application in a Proceeding seeking that final orders are made ex parte – Where a formal order has been made requiring the husband to seek leave before filing any Application in a Proceeding – Where no such leave is sought – Where Applications in a Proceeding have no reasonable prospects of success – Applications in a Proceeding determined on the papers in Chambers.

Legislation:
Family Law Act 1975 (Cth) Pts VII, VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 69(2)(f)

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.31, 5.13, 5.15

Cases cited:
Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Jenna & Jenna [2024] FedCFamC1A 121

Jenna & Jenna [2024] FedCFamC1F 253

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: Determined on the papers in chambers

Place: Sydney

Solicitor for the Applicant: Did not participate

Solicitor for the Respondent: Litigant in person

Solicitor for the Independent Children's Lawyer: Did not participate
ORDERS

SYC 5611 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JENNA

Applicant

AND:
MR JENNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:
1.Leave be refused to bring the Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 5 August 2024 and the application is dismissed.
2.Leave be refused to bring the further Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 7 August 2024 and the application is dismissed.

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 the pseudonyms Jenna & Jenna have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:

These are parenting and property proceedings under Pts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant wife, Ms…

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 Jenna & Jenna (No 2)

Details

AGLC: Jenna & Jenna (No 2) [2024] FedCFamC1F 667
Case: [2024] FedCFamC1F 667
Decision Date: 2 October 2024

CaseChat Overview and Summary

In this matter, Ms Jenna, the applicant, and Mr Jenna, the respondent, were involved in a family law proceeding before the Federal Circuit and Family Court of Australia. Mr Jenna filed two applications in the proceeding, seeking various orders, but did not obtain the necessary leave to file them as required by a prior court order. Ms Jenna applied for these applications to be dismissed and for costs to be awarded against Mr Jenna.

The court was required to determine whether leave should be granted for Mr Jenna to file the applications and, if so, whether the applications should be dismissed. The primary issue was whether the applications had any reasonable prospects of success and whether an oral hearing was necessary. Given the lack of any reasonable prospects of success, the court concluded that an oral hearing was not warranted, except for one specific order in the second application.

The court found that the applications had no reasonable prospects of success and that it was not in the interests of justice to require an oral hearing. The court also noted that even if leave was granted, there was no basis for any of the proposed orders. Consequently, the court refused leave to bring the applications and dismissed them. The court emphasised that the overarching purpose of the family law legislation is to achieve just outcomes for families in the most efficient way possible.

The court ordered that leave be refused to bring both applications filed by Mr Jenna, and the applications were dismissed. No costs were awarded against Mr Jenna.

Orders

Orders of the court

SYC 5611 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JENNA

Applicant

AND:

MR JENNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:

1. Leave be refused to bring the Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 5 August 2024 and the application is dismissed.

2. Leave be refused to bring the further Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 7 August 2024 and the application is dismissed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Taking account of those matters and the lack of any prospect of success, it is not in the interests of justice or consistent with the overarching purpose to require, or put any party to the expense of, an oral hearing of the husband’s applications other than in relation to Order 4 of Application B. For the same reason leave should be refused, and because even if leave was granted no basis for any of the other proposed orders has been demonstrated.Conclusion Leave will be refused for the husband to bring Application A and it will be dismissed. Leave will be refused to bring Application B, other than order 4, and it will be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5611 of 2020
Judgment of:	HARPER J
Date of judgment:	2 October 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a Proceeding – Where the husband files an Application in a Proceeding seeking that final orders are made ex parte – Where a formal order has been made requiring the husband to seek leave before filing any Application in a Proceeding – Where no such leave is sought – Where Applications in a Proceeding have no reasonable prospects of success – Applications in a Proceeding determined on the papers in Chambers.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 69(2)(f) Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.31, 5.13, 5.15
Cases cited:	Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Jenna & Jenna [2024] FedCFamC1A 121 Jenna & Jenna [2024] FedCFamC1F 253
Division:	Division 1 First Instance
Number of paragraphs:	29
Date of hearing:	Determined on the papers in chambers
Place:	Sydney
Solicitor for the Applicant:	Did not participate
Solicitor for the Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Did not participate

SYC 5611 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS JENNA Applicant
AND:	MR JENNA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	2 OCTOBER 2024