Mayer & Mayer (No 2) - [2025] FedCFamC2F 586

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mayer & Mayer (No 2) [2025] FedCFamC2F 586

File number(s): SYC 2880 of 2023

Judgment of: JUDGE MURDOCH

Date of judgment: 7 May 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where matter previously listed in the Defaulters’ List for non-compliance with procedural orders and a lack of progression in the matter – where on previous occasion the competing relief sought by the parties was dismissed – where Orders were made by a Senior Judicial Registrar on an interim basis subsequent to such dismissal and therefore absent power - where the Applicant now seeks to set aside the orders dismissing the proceedings pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – where s138 and 254(4) of the Federal Circuit and Family Court of Australia Act (2021) thus applies - where Applicant submits she would be prejudiced if proceedings not reinstated – where the Respondent previously submitted that the proceedings should not be dismissed but now opposes the application - where all property located in Australia is registered in the name of the Respondent - where the parties are divorced – where the discretion is exercised to discharge the Orders made in the Applicant’s absence dismissing the proceedings and the Orders made by the Senior Judicial Registrar confirmed.

Legislation:
Family Law Act 1975 (Cth) ss 79, 79A.

Federal Circuit and Family Court of Australia Act (2021) ss 138, s 254(4).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13(1)(a)

Cases cited:
Barbey & Tuttle [2013] FamCAFC 44 at [90]

Taylor v Taylor [1979] HCA 38.

Division: Division 2 Family Law

Number of paragraphs: 32

Date of hearing: 2 May 2025

Place: Sydney

Counsel for the Applicant: Mr Alexander

Solicitor for the Applicant: Barrak Lawyers

Counsel for the Respondent: Mr Connor

Solicitor for the Respondent: Takchi & Associates
ORDERS

SYC 2880 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MAYER

Applicant

AND:
MR MAYER

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

7 MAY 2025

THE COURT ORDERS THAT:
1.Orders 1 and 2 made on 27 February 2025 are discharged.
2.The Orders made by the Senior Judicial Registrar on 7 April 2025 are confirmed.
3.The matter is listed for further Directions at 9:30 am on 14 May 2025, with the parties and their legal representatives to attend in person.
4.Each of the parties are to serve upon the other party and forward to the Chambers of Judge Murdoch via email by no later than 4:00 pm 13 May 2025 a Draft Minute of Order to progress the matter.
5.Save as to the question of costs, the Application in a Proceeding filed 28 March 2025 and the Response filed 11 April 2025 are otherwise 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…

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 Mayer & Mayer (No 2)

Details

AGLC: Mayer & Mayer (No 2) [2025] FedCFamC2F 586
Case: [2025] FedCFamC2F 586
Decision Date: 7 May 2025

CaseChat Overview and Summary

The case of Mayer & Mayer (No 2) involved Ms Mayer, the Applicant, and Mr Mayer, the Respondent, before Judge Murdoch in Division 2 of the Federal Circuit and Family Court of Australia. The matter was originally listed in the Defaulters’ List due to procedural non-compliance and lack of progress. The court previously dismissed the competing relief sought by the parties. Following the dismissal, the Senior Judicial Registrar issued interim orders, which were later confirmed. The Applicant sought to set aside the orders dismissing the proceedings under Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The Applicant argued she would be prejudiced if the proceedings were not reinstated, whereas the Respondent, who had previously opposed dismissal, now opposed the application. All property in Australia was registered in the Respondent's name, and the parties were divorced.

The legal issues before the court included the validity of the orders made in the Applicant's absence and the interim orders issued by the Senior Judicial Registrar. The court had to determine whether to discharge the orders dismissing the proceedings and whether to confirm the interim orders. The court considered the implications of s138 and s254(4) of the Federal Circuit and Family Court of Australia Act 2021. The court also had to assess the prejudice to the Applicant if the proceedings were not reinstated and the Respondent's change of position. Judge Murdoch exercised the court’s discretion to discharge the orders made in the Applicant’s absence and confirmed the orders made by the Senior Judicial Registrar.

Judge Murdoch discharged the orders made in the Applicant’s absence dismissing the proceedings and confirmed the interim orders made by the Senior Judicial Registrar. The court ordered that the matter be listed for further directions, requiring the parties to attend in person. The parties were instructed to serve and email a Draft Minute of Order to each other and the court by a specific date. The application in a proceeding and the response were dismissed, except for the question of costs. This decision was subject to review for minor typographical or grammatical errors or to record a variation to the order. The case highlights the procedural nuances and the court’s discretion in family law matters, particularly concerning the setting aside of orders and the implications of prejudice.

Orders

Orders of the court

SYC 2880 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MAYER

Applicant

AND:

MR MAYER

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

7 MAY 2025

THE COURT ORDERS THAT:

1. Orders 1 and 2 made on 27 February 2025 are discharged.

2. The Orders made by the Senior Judicial Registrar on 7 April 2025 are confirmed.

3. The matter is listed for further Directions at 9:30 am on 14 May 2025, with the parties and their legal representatives to attend in person.

4. Each of the parties are to serve upon the other party and forward to the Chambers of Judge Murdoch via email by no later than 4:00 pm 13 May 2025 a Draft Minute of Order to progress the matter.

5. Save as to the question of costs, the Application in a Proceeding filed 28 March 2025 and the Response filed 11 April 2025 are otherwise 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 2880 of 2023
Judgment of:	JUDGE MURDOCH
Date of judgment:	7 May 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – where matter previously listed in the Defaulters’ List for non-compliance with procedural orders and a lack of progression in the matter – where on previous occasion the competing relief sought by the parties was dismissed – where Orders were made by a Senior Judicial Registrar on an interim basis subsequent to such dismissal and therefore absent power - where the Applicant now seeks to set aside the orders dismissing the proceedings pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – where s138 and 254(4) of the Federal Circuit and Family Court of Australia Act (2021) thus applies - where Applicant submits she would be prejudiced if proceedings not reinstated – where the Respondent previously submitted that the proceedings should not be dismissed but now opposes the application - where all property located in Australia is registered in the name of the Respondent - where the parties are divorced – where the discretion is exercised to discharge the Orders made in the Applicant’s absence dismissing the proceedings and the Orders made by the Senior Judicial Registrar confirmed.
Legislation:	Family Law Act 1975 (Cth) ss 79, 79A. Federal Circuit and Family Court of Australia Act (2021) ss 138, s 254(4). Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13(1)(a)
Cases cited:	Barbey & Tuttle [2013] FamCAFC 44 at [90] Taylor v Taylor [1979] HCA 38.
Division:	Division 2 Family Law
Number of paragraphs:	32
Date of hearing:	2 May 2025
Place:	Sydney
Counsel for the Applicant:	Mr Alexander
Solicitor for the Applicant:	Barrak Lawyers
Counsel for the Respondent:	Mr Connor
Solicitor for the Respondent:	Takchi & Associates

SYC 2880 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MAYER Applicant
AND:	MR MAYER Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	7 MAY 2025