Nowell & Nowell - [2021] FedCFamC2F 170

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nowell & Nowell [2021] FedCFamC2F 170

File number(s): ADC 4285 of 2021

Judgment of: CHIEF JUDGE ALSTERGREN

Date of judgment: 13 October 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – review of a Registrar’s decision not to list matter on urgent basis and to transfer the matter into the Evatt List – application dismissed

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07

Cases cited:
Darvell & Darvell [2021] FamCA 490
Diacos & Gataki(No 3) [2021] FCCA 1841
Hearnes & Jellets [2020] FCCA 2722
Lombardi & Rider [2021] FedCFamC2F 57
Petrova & Leighton [2017] FCCA 315
Moxey & Keirn [2021] FamCA 615
Myers & Myers [2011] 253 FLR 445
Tadros & Tadros & Ors [2020] FCCA 1118

Vibbard & Garcia (2012) 48 Fam LR 1

Division: Division 2 Family Law

Number of paragraphs: 50

Date of last submission/s: 8 October 2021

Date of hearing: 7 October 2021

Place: Melbourne

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Jordan & Fowler Family Lawyers

Counsel for the Respondent: Ms Reid

Solicitor for the Respondent: CG Family Law
ORDERS

ADC 4285 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NOWELL

Applicant

AND:
MR NOWELL

Respondent

ORDER MADE BY:

CHIEF JUDGE ALSTERGREN

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Mother’s Application for Review filed 20 September 2021 be dismissed.
2.The parties each bear their own costs of and incidental to the Application for Review.

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 Nowell & Nowell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN

This matter concerns an Application for Review filed by the Mother on 20 September 2021, seeking review of orders made by a Registrar on 17 September 2021 (“the Review Application”).
The Review Application was listed for hearing before me on 7 October 2021 (“the Review Hearing”).
These proceedings commenced by Initiating Application filed by the Father on 2 September 2021 and concern the child of the relationship, X born in 2012 and aged 9 (“the child”). The parties agree that the Father…

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 Nowell & Nowell

Details

AGLC: Nowell & Nowell [2021] FedCFamC2F 170
Case: [2021] FedCFamC2F 170
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of Nowell & Nowell involved an application for review by Ms Nowell against a decision by a Registrar of the Federal Circuit and Family Court of Australia. The Registrar had declined to list Ms Nowell's matter on an urgent basis and had instead transferred it into the Evatt List. The matter was heard and determined by Chief Judge Alstergren. The central issue before the court was whether the Registrar's decision to not list the matter as urgent and to transfer it into the Evatt List was appropriate and in accordance with the law.

The court examined the criteria for urgency and the process for transferring matters between lists as outlined in the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court considered the nature and urgency of the application and the circumstances under which the Registrar had exercised their discretion. The court found that the Registrar had appropriately exercised their discretion in accordance with the applicable law and procedural rules. The court held that the Registrar's decision was reasonable and that there were no grounds for the applicant to seek a review of the decision.

Accordingly, the court dismissed the application for review. The court ordered that the applicant bear her own costs of and incidental to the application for review. The court also noted that the form of the order was subject to review to remedy minor typographical or grammatical errors or to record a variation to the order pursuant to the applicable rules. The decision underscores the importance of adhering to the legal framework and procedural rules in making decisions in family law matters.

Orders

Orders of the court

ADC 4285 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS NOWELL

Applicant

AND:

MR NOWELL

Respondent

ORDER MADE BY:

CHIEF JUDGE ALSTERGREN

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:

1. The Mother’s Application for Review filed 20 September 2021 be dismissed.

2. The parties each bear their own costs of and incidental to the Application for Review.

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):	ADC 4285 of 2021
Judgment of:	CHIEF JUDGE ALSTERGREN
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – review of a Registrar’s decision not to list matter on urgent basis and to transfer the matter into the Evatt List – application dismissed
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07
Cases cited:	Darvell & Darvell [2021] FamCA 490 Diacos & Gataki(No 3) [2021] FCCA 1841 Hearnes & Jellets [2020] FCCA 2722 Lombardi & Rider [2021] FedCFamC2F 57 Petrova & Leighton [2017] FCCA 315 Moxey & Keirn [2021] FamCA 615 Myers & Myers [2011] 253 FLR 445 Tadros & Tadros & Ors [2020] FCCA 1118 Vibbard & Garcia (2012) 48 Fam LR 1
Division:	Division 2 Family Law
Number of paragraphs:	50
Date of last submission/s:	8 October 2021
Date of hearing:	7 October 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Jordan & Fowler Family Lawyers
Counsel for the Respondent:	Ms Reid
Solicitor for the Respondent:	CG Family Law

ADC 4285 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS NOWELL Applicant
AND:	MR NOWELL Respondent

ORDER MADE BY:	CHIEF JUDGE ALSTERGREN
DATE OF ORDER:	13 OCTOBER 2021