Mears & Hilton - [2022] FedCFamC2F 1793

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mears & Hilton [2022] FedCFamC2F 1793

File number(s): WOC 1213 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 23 December 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant engaged legal representation after the conclusion of the proceedings – Application for an extension of time to file submissions in reply – Inappropriate for legal representatives to attempt to litigate via correspondence with a judge’s chambers – Short extension of time to file granted.

Legislation: Federal Circuit and Family Court of Australia Act (Cth) s 67

Division: Division 2 Family Law

Number of paragraphs: 8

Date of hearing: 23 December 2022

Place: Sydney (via videolink)

Solicitor for the Applicant: Mr Gibbs of GPG Lawyers

Counsel for the Respondent: Mr Blank

Solicitor for the Respondent: Culleton Lawyers Pty Ltd
ORDERS

WOC 1213 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MEARS

Applicant

AND:
MS HILTON

Respondent

order made by:

DEPUTY chief JUDGE MCCLELLAND

DATE OF ORDER:

23 DECEMBER 2022

THE COURT ORDERS THAT:
1.The applicant father is granted an extension of time to comply with Order 2 of 9 December 2022 to 4.00 pm, 13 January 2023.
2.The submissions referred to in Order (1) above are to be directly responsive to the matters raise in the respondents’ written submissions of 16 December 2022.
3.There is no order for costs.

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).
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 by this Court under the pseudonym Mears & Hilton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:

The applicant, Mr Mears, has applied for an extension of time to file submissions in reply to those filed by the respondent, Ms Hilton, filed on 16 December 2022. The background to this matter coming before the Court is set out in paragraphs 1 through 6 of the respondent’s submissions dated 16 December 2022, which are as follows:
1. This matter was conducted over two days on 8 and 9 December 2022.
2. The Applicant father was self-represented at the hearing.
3.In the course of making submissions, the Applicant father sought to tender a bundle of documents comprising Facetime screenshots, text communications and emails between him and the mother. The tender was admitted and marked as…

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 Mears & Hilton

Details

AGLC: Mears & Hilton [2022] FedCFamC2F 1793
Case: [2022] FedCFamC2F 1793
Decision Date

CaseChat Overview and Summary

The case of Mears & Hilton [2022] FedCFamC2F 1793 involved an application by the applicant, Mr Mears, for an extension of time to file submissions in reply to those filed by the respondent, Ms Hilton. The matter came before the Federal Circuit and Family Court of Australia, Division 2, Family Law, presided over by Deputy Chief Judge McClelland. The application was made on 23 December 2022, after the conclusion of the proceedings that were held on 8 and 9 December 2022. Mr Mears was self-represented at the hearing, and Ms Hilton was represented by counsel. The primary issue before the court was whether an extension of time should be granted to Mr Mears to file his submissions in reply to the respondent's submissions dated 16 December 2022.

The court considered the arguments presented by the parties and noted that the applicant's solicitor was engaged after the conclusion of the proceedings and needed time to familiarise himself with the issues. The court also expressed its concerns regarding the necessity for the matter to be adjudicated in circumstances where the parties and their legal advisers have an obligation to comply with the overarching purpose in s 67 of the Federal Circuit and Family Court of Australia Act (Cth). Additionally, the court indicated that it was inappropriate and contrary to the concept of open justice for the parties to seek to litigate their respective positions by way of correspondence with a judge's chambers. After considering the parties' submissions, the court determined that a short extension of time was appropriate. The court granted the extension to 4.00 pm, 13 January 2023, and made an additional order that the submissions were to be directly responsive only to the matters raised in the respondent's written submissions of 16 December 2022.

The court did not make any order for costs, and the form of the order was subject to the entry in the Court's records. The court also noted that the publication of the judgment under the pseudonym Mears & Hilton had been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). The case highlights the importance of adhering to the overarching purpose in family law proceedings and the expectation that experienced professionals will act in a manner consistent with this purpose. It also emphasises the inappropriateness of attempting to resolve disputes through correspondence with a judge's chambers, as such matters should be dealt with in open court.

Orders