Nakai & Nakai - [2025] FedCFamC2F 87

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nakai & Nakai [2025] FedCFamC2F 87

File number(s): BRC 7998 of 2023

Judgment of: JUDGE MANSFIELD

Date of judgment: 24 January 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed

Legislation:
Family Court of Australia Act 1975 (Cth) s 69ZX(3)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 149, 149(3)(d), 254, 256

Federal Circuit and Family Court of Australia Act 2021 (Division 2) (Family Law) Rules 2021 (Cth) r 3.01

Cases cited:
Lombardi & Rider [2021] FedCFamC2F 57

Myers & Myers [2011] 253 FLR 445

Vibbard & Garcia (2012) 48 Fam LR 1

Division: Division 2 Family Law

Number of paragraphs: 23

Date of last submission/s: 24 January 2025

Date of hearing: 24 January 2025

Place: Canberra

Solicitor for the Applicant: DA Family Lawyers

Counsel for the Respondent: Mr Baston

Solicitor for the Respondent: Rosen Lawyers
ORDERS

BRC 7998 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NAKAI

Applicant

AND:
MS NAKAI

Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

24 JANUARY 2024

THE COURT ORDERS THAT:
1.The Father’s Application for Review filed 19 December 2024 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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION

This is an application for review of a Registrar’s decision made on 13 December 2024 not to grant an urgent listing for the determination of interlocutory orders sought by him in the Initiating Application filed on 12 December 2024.
The application has instead been listed before a Judicial Registrar in a first return list on 24 February 2025.
The applicant seeks orders that the time for return of the Initiating Application be abridged and the proceedings be listed for interim defended hearing before Justice Carew.
For the reasons that follow, the father’s Application for Review filed on 19 December 2024 is dismissed.
MATERIAL
Material received into evidence was:
(a)The Initiating Application dated 12 December 2024.
(b)The applicant’s affidavit in support of the Initiating Application made on 12 December 2024.
(c)The Application for Review filed on 19 December 2024; and
(d)With leave of the…

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 Nakai & Nakai

Details

AGLC: Nakai & Nakai [2025] FedCFamC2F 87
Case: [2025] FedCFamC2F 87
Decision Date: 24 January 2025

CaseChat Overview and Summary

Mr Nakai filed an application for review against a Registrar's decision not to list his matter on an urgent basis in the Federal Circuit and Family Court of Australia. The matter pertained to family law issues involving himself and his former spouse, Ms Nakai. Mr Nakai sought to expedite the hearing of his application on the basis of urgent family circumstances. The court was tasked with determining whether the Registrar's decision was correct and whether there were grounds to list the matter on an urgent basis.

The primary legal issue before the court was whether the Registrar's decision not to list the matter on an urgent basis was appropriate, given the circumstances presented by Mr Nakai. The court considered the criteria set out in the Family Law Act 1975 (Cth) for urgent applications and assessed whether Mr Nakai's application met those criteria. The court also reviewed the evidence and arguments presented by both parties to determine if there was a sufficient basis for urgency.

Judge Mansfield concluded that the Registrar's decision was appropriate and dismissed Mr Nakai's application for review. The court found that the application did not meet the stringent criteria required for an urgent listing. The judge noted that while the circumstances presented were serious, they did not rise to the level of urgency necessary to warrant a departure from the usual procedural requirements. Consequently, the court upheld the Registrar's decision and dismissed the application.

The court's final order was that the Father's Application for Review filed on 19 December 2023 was dismissed. This decision was in line with the court's determination that there were no grounds to list the matter on an urgent basis. The order was subject to review for any minor typographical or grammatical errors and could be varied if necessary in accordance with the relevant rules.

Orders

Orders of the court

BRC 7998 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR NAKAI

Applicant

AND:

MS NAKAI

Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

24 JANUARY 2024

THE COURT ORDERS THAT:

1. The Father’s Application for Review filed 19 December 2024 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).

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

Full text does not contain this section.

File number(s):	BRC 7998 of 2023
Judgment of:	JUDGE MANSFIELD
Date of judgment:	24 January 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed
Legislation:	Family Court of Australia Act 1975 (Cth) s 69ZX(3) Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 149, 149(3)(d), 254, 256 Federal Circuit and Family Court of Australia Act 2021 (Division 2) (Family Law) Rules 2021 (Cth) r 3.01
Cases cited:	Lombardi & Rider [2021] FedCFamC2F 57 Myers & Myers [2011] 253 FLR 445 Vibbard & Garcia (2012) 48 Fam LR 1
Division:	Division 2 Family Law
Number of paragraphs:	23
Date of last submission/s:	24 January 2025
Date of hearing:	24 January 2025
Place:	Canberra
Solicitor for the Applicant:	DA Family Lawyers
Counsel for the Respondent:	Mr Baston
Solicitor for the Respondent:	Rosen Lawyers

BRC 7998 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NAKAI Applicant
AND:	MS NAKAI Respondent

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	24 JANUARY 2024