Lawson & Glenning - [2021] FedCFamC2F 118

Federal Circuit and Family Court of Australia

(DIVISION 2)

Lawson & Glenning [2021] FedCFamC2F 118

File number(s):

MLC 8031 of 2021

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

15 September 2021

Catchwords:

FAMILY LAW – costs – Review of Registrar’s decision – Review Application futile – overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Registrar’s hearing not to be treated as ‘dry-run’ or ‘practice –run’ at a case – costs awarded

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Division:

Division 2 Family Law

Number of paragraphs:

Date of last submission/s:

15 September 2021

Date of hearing:

15 September 2021

Place:

Melbourne (via Microsoft Teams)

Counsel for the Applicant:

Mr Allen

Solicitor for the Applicant:

Knight Family Lawyers

Solicitor for the Respondent:

Shane McClure

Solicitor for the Independent Children's Lawyer:

Bowlen Dunstan & Associates Pty

ORDERS

MLC 8031 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LAWSON

Applicant

AND:

MS GLENNING

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE RIETHMULLER

DATE OF ORDER:

15 SEPTEMBER 2021

THE COURT ORDERS, BY CONSENT, THAT:

1. The Application for Review dated 6 September 2021 be dismissed.

AND THE COURT FURTHER ORDERS THAT:

2. The Applicant pay the Respondent’s costs of the Application for Review fixed in the amount of $880.00 AND THAT the Applicant have six months to pay.

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.

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

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

This is a cost application concerning a review application made to review an interim decision of a Registrar of the Court in a parenting case, which was dismissed by consent.

The Registrar dealt with the parenting matter on 31 August 2021 and made a number of orders (including that the children reside with the mother and for the appointment of an Independent Children’s Lawyer) before adjourning the matter over to Friday of this week. During that adjourned period, the parties were given directions so as to enable them to file further material prior to 17 September 2021 and further affidavits to be filed and served by 14 September 2021 and various documents by 16 September 2021.

The substantive parts of the orders that the Registrar made on that date should not have been unexpected on the material before the Court. The father is seeking time with the children and alleges that the children are at risk in the mother’s household. The mother alleges that the children are at risk with the father. The Registrar reserved the question of time with the father, bearing in mind that the matter was coming back…

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 Lawson & Glenning

Details

AGLC: Lawson & Glenning [2021] FedCFamC2F 118
Case: [2021] FedCFamC2F 118
Decision Date: 15 September 2021

CaseChat Overview and Summary

The matter of Lawson & Glenning involved a review application concerning the decision of a Registrar in family law proceedings. The Applicant, who was dissatisfied with the Registrar's decision, sought a review under section 122 of the Federal Circuit and Family Court of Australia Act 2021. The Respondent opposed the review application, contending that it was futile and that the Applicant was attempting to use the review process as a means of re-litigating the matter.

The court was tasked with determining whether the review application was futile, as well as considering the overarching purpose of the Federal Circuit and Family Court of Australia Act 2021. Additionally, the court examined whether the Registrar’s hearing should be treated as a 'dry-run' or 'practice-run' at a case. In assessing these issues, the court noted that the review process is not intended to be a means for re-litigation, and that the overarching purpose of the Act is to ensure the efficient and effective administration of justice. The court found that the review application was indeed futile, as the Applicant was essentially seeking to re-litigate the matter.

Consequently, the court dismissed the review application and awarded costs to the Respondent. The Applicant was ordered to pay the Respondent’s costs of the review application, fixed in the amount of $880.00, with a six-month period allowed for payment. The court emphasised that the Registrar’s hearing was not to be treated as a 'dry-run' or 'practice-run' of the case. This decision highlights the importance of adhering to the intended purpose of the review process and avoiding the use of the process for re-litigation.

Orders

Orders of the court

THE COURT ORDERS, BY CONSENT, THAT:

1. The Application for Review dated 6 September 2021 be dismissed.

AND THE COURT FURTHER ORDERS THAT:

2. The Applicant pay the Respondent’s costs of the Application for Review fixed in the amount of $880.00 AND THAT the Applicant have six months to pay.

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.

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

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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