LESTER and BEATTIE - [2024] FCWA 249

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
IN CHAMBERS
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: LESTER and BEATTIE [2024] FCWA 249
CORAM: COHEN J
HEARD: 23 OCTOBER 2024
DELIVERED : Ex tempore
FILE NO/S: 1051 of 2018
EX PARTE
MS LESTER
Applicant
AND
MR BEATTIE
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Review of registrar's decision - Where registrar rejected a Form 2 Application and supporting affidavit for filing - Consideration of Family Court Rules 2021 (WA) r 490 - Where review upheld and application to be listed within 14 days - Case turns on own facts

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA), r 490

Category: Not Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	No Appearance

Solicitors:

Applicant	:	Joss Legal
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Giacobetti & Giacobetti (No 3) [2023] FedCFamC1F 1126

COHEN J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lester and Beattie has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Section 243 of the Family Court Act 1997 (WA) 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.

1The Court was asked to conduct a review of a registrar's decision pursuant to rule 490(3) of the Family Court Rules 2021 (WA) ("the Rules").
2The applicant mother, [Ms Lester] ("the Applicant"), in her Form 2 Application for Review filed 23 October 2024 ("the Review") sought the Court consider the registrar's decision to refuse to accept a Form 2 Application filed 15 October 2024 ("the Proposed Application"). She also requested the Court provide reasons for decision.
3The proceedings relate to the parties' daughter, [Child A] born [in] 2020. The other party to the proceedings is the respondent father, [Mr Beattie] ("the Respondent").
4For the Reasons that follow, I allowed the Review and directed the Proposed Application be accepted for filing as at the date it was lodged on the eCourts Portal.

Background

5On 20 December 2019, the parties agreed final orders by consent, which provided for, amongst other things, Child A to live between the parties in an equal time arrangement.
6On 1 November 2023, the Applicant recommenced proceedings, which the Respondent responded to on 4 December 2023. For present purposes, it is only necessary to note that both parties currently seek orders on a final basis for Child A to live with them.
7[In] March 2024, the parties attended a case assessment…

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 LESTER and BEATTIE

Details

AGLC: LESTER and BEATTIE [2024] FCWA 249
Case: [2024] FCWA 249
Decision Date: 23 OCTOBER 2024

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Lester and Beattie was heard. The case revolved around the rejection of a Form 2 Application and supporting affidavit by the registrar for filing. The applicants sought a review of the registrar's decision under Family Court Rules 2021 (WA) r 490, aiming for their application to be listed within 14 days. The primary legal issue before the court was whether the registrar's decision to reject the Form 2 Application was justified under the rules and whether the review process should be upheld.

The court examined the procedural history and the grounds upon which the registrar had rejected the application. It considered whether the rejection was procedurally fair and whether the applicants had complied with the requirements of the rules. The court also evaluated the merits of the application itself, determining if the application had a reasonable prospect of success. The key legal principle applied was the correct interpretation of Family Court Rules 2021 (WA) r 490 and the procedural fairness of the registrar's decision.

After thorough consideration, the court found that the registrar's decision to reject the Form 2 Application was not justified. The court concluded that the review should be upheld, and the application should be listed within 14 days. The court emphasised that each case must be assessed on its own facts, and procedural fairness was paramount. The court ordered that the Form 2 Application and supporting affidavit be accepted for filing, and the matter be listed for further proceedings within the stipulated timeframe.

Orders