Mulliner & Riggs - [2024] FedCFamC2F 366

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulliner & Riggs [2024] FedCFamC2F 366

File number(s): MLC 8006 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 4 March 2024

Catchwords: FAMILY LAW – what is an undefended hearing – party in default – attempts to comply with revised trial directions made – application to proceed undefended refused – consideration of interests off justice and welfare of child

Legislation:
Family Court of Australia 2004 Rules

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.33 and rule 10.27(2)

Cases cited:
Morgan & Valverde (2022) FLC 94-100

Saso & Saso [2023] FedCFamC1A 65

Singam & Moffrey (2015) FLC 93-641

Zane & Allan (2008) FLC 93-378

Division: Division 2 Family Law

Number of paragraphs: 43

Date of last submission/s: 4 March 2024

Date of hearing: 4-5 March 2024

Place: Melbourne

Solicitor for the Applicant: Mr Mulliner

Counsel for the Respondent: Ms Juneja

Solicitor for the Respondent: Cathleen Corridon and Associates
ORDERS

MLC 8006 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MULLINER

Applicant

AND:
MS RIGGS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 MARCH 2024

THE COURT ORDERS THAT:
1.The application by the Applicant Mother for the matter to proceed on an undefended basis be and is 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).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT

These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, or slips in recitation of evidence, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged. In the oral reasons the passages of authorities were not read out to the parties but were considered.
In the matter of Mulliner & Riggs, I am asked to deal with the matter on an undefended basis, and helpfully, counsel for the applicant on that application has indicated the parameters of what is implied or stated to be the undefended hearing.
Trial material
Counsel for the applicant pushed for the father’s application and trial material be dismissed, and the matter…

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 Mulliner & Riggs

Details

AGLC: Mulliner & Riggs [2024] FedCFamC2F 366
Case: [2024] FedCFamC2F 366
Decision Date: 4 March 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, was presented with an application by Mr. Mulliner, the Applicant, to proceed undefended in a family law matter against Ms. Riggs, the Respondent. The primary issue was whether the court should allow the Applicant to proceed undefended despite being in default for failing to comply with revised trial directions. This case involved the determination of the procedural rules governing undefended hearings and the overarching consideration of justice and the welfare of any child involved.

The court had to decide whether it was appropriate to grant the Applicant's request to proceed undefended, given that the Applicant was in default for not adhering to the revised trial directions. The decision hinged on whether the Applicant had made sufficient attempts to comply with the court's directions and whether allowing the application would be in the interests of justice and the welfare of any child involved. The court needed to balance the procedural fairness to both parties with the overarching objective of achieving a just outcome.

In dismissing the application, the court found that the Applicant had not sufficiently attempted to comply with the revised trial directions. The Applicant's efforts to rectify the situation were deemed inadequate, and allowing the application to proceed undefended would not be in the interests of justice or the welfare of any child. The court concluded that the application should be refused, as it would not be appropriate to allow the Applicant to proceed undefended under the circumstances.

The court's final order dismissed the Applicant's application for the matter to proceed on an undefended basis. The order was made in accordance with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court emphasized that the form of the order was subject to review and potential variations as per the relevant court rules.

Orders

Orders of the court

MLC 8006 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MULLINER

Applicant

AND:

MS RIGGS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 MARCH 2024

THE COURT ORDERS THAT:

1. The application by the Applicant Mother for the matter to proceed on an undefended basis be and is 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).

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.

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

Full text does not contain this section.

File number(s):	MLC 8006 of 2022
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	4 March 2024
Catchwords:	FAMILY LAW – what is an undefended hearing – party in default – attempts to comply with revised trial directions made – application to proceed undefended refused – consideration of interests off justice and welfare of child
Legislation:	Family Court of Australia 2004 Rules Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.33 and rule 10.27(2)
Cases cited:	Morgan & Valverde (2022) FLC 94-100 Saso & Saso [2023] FedCFamC1A 65 Singam & Moffrey (2015) FLC 93-641 Zane & Allan (2008) FLC 93-378
Division:	Division 2 Family Law
Number of paragraphs:	43
Date of last submission/s:	4 March 2024
Date of hearing:	4-5 March 2024
Place:	Melbourne
Solicitor for the Applicant:	Mr Mulliner
Counsel for the Respondent:	Ms Juneja
Solicitor for the Respondent:	Cathleen Corridon and Associates

MLC 8006 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MULLINER Applicant
AND:	MS RIGGS Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	4 MARCH 2024