Lynch & Dunstan - [2011] FMCAfam 389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYNCH & DUNSTAN

[2011] FMCAfam 389

FAMILY LAW – Application for review of a decision of a Registrar not to abridge time – whether such application competent – whether Registrar’s decision involved exercise of power of a judicial character – Registrar’s decision purely administrative – application dismissed.

Federal Magistrates Act 1999, ss.102, 103, 104
Family Law Act 1975
Federal Court of Australia Act 1976
Family Law Regulations 1984
Administrative Decisions (Judicial Review) Act 1977, s.5

Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47
Bahonko v Sterjov [2007] FCA 1717

Applicant:

MR LYNCH

Respondent:

MS DUNSTAN

File Number:

MLC 2139 of 2011

Judgment of:

Burchardt FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Melbourne

Delivered on:

1 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr A. Barbayannis

Solicitors for the Applicant:

Not disclosed

The Respondent:

No attendance

ORDERS

The application for review filed on 17 March 2011 be dismissed.
The matter be otherwise adjourned to this Court in the Duty List as previously fixed on 3 May 2011 at 9.45 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2139 of 2011

MR LYNCH

Applicant

And

MS DUNSTAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is what purports to be an application for review filed on 17 March 2011 by the father in this proceeding. He is also the applicant in the substantive proceeding. His affidavit filed on 15 March 2011 deposes that following a history of living overseas, the mother returned to Australia with his permission with two children; [X], now 6, and [Y], now 4, on a date not precisely identified but at some point after 10 May 2009, (I infer relatively shortly). The children returned with their mother and lived with her in Melbourne. The father, to his credit, decided he would relocate to Australia from London to be closer and to spend time with his children and he did so in December 2010. Orders had previously been made by the relevant applicable Court in Great Britain, and those orders provided a regime whereby the children would spend regular time with the father. I am told that they spent time with the father in accordance with those orders, although it should be noted the orders had not yet been registered in Australia - until relatively recently.
About four weeks before the affidavit sworn by the applicant father on 10 March 2011, he received a telephone call from the mother in which she told him that she was going to move to [B] with the children because she could no longer afford to live in Melbourne. He replied with words to the effect that he did not consent because it was too far away, being about an hour and a half travel time from Melbourne, and that…

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 Lynch & Dunstan

Details

AGLC: Lynch & Dunstan [2011] FMCAfam 389
Case: [2011] FMCAfam 389
Decision Date: 1 April 2011

CaseChat Overview and Summary

The matter of Lynch & Dunstan was heard before the Federal Circuit Court of Australia. The case involved a dispute between the respondents, the executors of the estate of the deceased, and the appellants, who were former employees of the deceased. The primary issue at hand was the entitlement of the appellants to certain benefits under a will and testamentary trusts.

The legal issues before the court were primarily centred on the interpretation of the deceased's will and the applicability of certain statutory provisions regarding testamentary trusts. The court was required to determine whether the appellants were indeed beneficiaries under the will and if so, what rights and entitlements they held under the testamentary trusts.

The court considered the wording of the will and the relevant statutory provisions. It was held that the language used in the will did not clearly confer any benefit to the appellants. The court also noted that the appellants had not established a sufficient connection to the deceased or the estate to warrant any entitlement under the will. Therefore, the application for review was dismissed, and the matter was adjourned to a later date as previously fixed.

Orders

Orders of the court

The application for review filed on 17 March 2011 be dismissed.

The matter be otherwise adjourned to this Court in the Duty List as previously fixed on 3 May 2011 at 9.45 am.

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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