Neame & Neame - [2021] FCCA 1664

FEDERAL CIRCUIT COURT OF AUSTRALIA
Neame & Neame [2021] FCCA 1664

File number(s): PAC 3201 of 2021

Judgment of: JUDGE MYERS

Date of judgment: 2 July 2021

Catchwords: FAMILY LAW – practice and procedure – power to review a registrar’s decision – refusal to grant leave to file on short notice – refusal to urgently list matter

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), ss 102(2)(a)-(o), 103(1) and 104(1) & (2)

Federal Circuit Court of Australia Rules 1999 (Cth), r 6.19

Cases cited:
Lynch & Dunstan [2011] FMCAfam 389

Zeller & Whitby [2011] FMCAfam 431

Alcock & Baressi [2012] FMCAfam 60

Myers & Myers [2011] FMCAfam 1104

Palmer & Palmer [2012] FMCAfam 522

Vibbard & Garcia [2012] FamCAFC 114

Number of paragraphs: 11

Date of hearing: 2 July 2021

Place: Parramatta

Counsel for the First Applicant: Ms Lawson

Counsel for the First Respondent: Mr Todd
ORDERS

PAC 3201 of 2021

BETWEEN:
MR NEAME

Applicant

AND:
MS NEAME

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:
1.The decision of Registrar Boldiston, made 18 June 2021, is reviewed and the interim orders sought, as contained in the Response filed by the Respondent Mother on 17 June 2021, are listed for hearing this morning 2 July 2021.

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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 under the pseudonym Neame & Neame is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MYERS

This is an interlocutory ex tempore decision in the matter of Neame & Neame delivered after receiving submissions in the court this morning. The decision relates to an application made by the Respondent Mother in an Application in a Case, filed 23 June 2021, where she seeks that a decision of Registrar Boldiston, made 18 June 2021, to refuse to grant leave to the Respondent Mother to serve short notice of her Response, filed 18 June 2021, and the refusal to urgently list the Interim Application for a Recovery Order contained within that Response, be reviewed.
Reviewing a decision of a Registrar to abridge time is an issue that has been canvassed before this Court on several occasions. First instance decisions include Lynch & Dunstan;[1] Zeller & Whitby;[2] Alcock & Baressi;[3] Myers & Myers;[4] and Palmer & Palmer.[5]
[1] [2011] FMCAfam 389.
[2] [2011] FMCAfam 431.
[3] [2012] FMCAfam 60.
[4] [2011] FMCAfam 1104.
[5] [2012] FMCAfam 522.
Pursuant to s 102 of…

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 Neame & Neame

Details

AGLC: Neame & Neame [2021] FCCA 1664
Case: [2021] FCCA 1664
Decision Date: 2 July 2021

CaseChat Overview and Summary

In the matter of *Neame & Neame*, Judge Myers of the Family Court of Australia reviewed a decision made by Registrar Boldiston. The dispute concerned the Respondent Mother's application for interim orders, which she sought to file on short notice and have urgently listed for hearing.

The central legal issues before the Court were whether the Registrar erred in refusing to grant leave to file the application on short notice and whether the Registrar erred in refusing to urgently list the matter for hearing.

Judge Myers reasoned that the Registrar's refusal to grant leave to file on short notice and to urgently list the matter was an error. The Court found that the circumstances warranted the urgent listing of the application. Consequently, the Court reviewed the Registrar's decision and ordered that the interim orders sought by the Respondent Mother be listed for hearing on the morning of 2 July 2021.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The decision of Registrar Boldiston, made 18 June 2021, is reviewed and the interim orders sought, as contained in the Response filed by the Respondent Mother on 17 June 2021, are listed for hearing this morning 2 July 2021.

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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 under the pseudonym Neame & Neame is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

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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File number(s):	PAC 3201 of 2021
Judgment of:	JUDGE MYERS
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – practice and procedure – power to review a registrar’s decision – refusal to grant leave to file on short notice – refusal to urgently list matter
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth), ss 102(2)(a)-(o), 103(1) and 104(1) & (2) Federal Circuit Court of Australia Rules 1999 (Cth), r 6.19
Cases cited:	Lynch & Dunstan [2011] FMCAfam 389 Zeller & Whitby [2011] FMCAfam 431 Alcock & Baressi [2012] FMCAfam 60 Myers & Myers [2011] FMCAfam 1104 Palmer & Palmer [2012] FMCAfam 522 Vibbard & Garcia [2012] FamCAFC 114
Number of paragraphs:	11
Date of hearing:	2 July 2021
Place:	Parramatta
Counsel for the First Applicant:	Ms Lawson
Counsel for the First Respondent:	Mr Todd

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	2 JULY 2021