Pacana and Kellems - [2018] FCCA 1293

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACANA & KELLEMS

[2018] FCCA 1293

Catchwords:
FAMILY LAW – Application for review of Registrar’s decision to refuse short service – application determined in chambers and dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 15.03

Cases cited:

Cantrell & Cantrell [2017] FCCA 2565

Quong & Rush [2017] FCCA 1765

Applicant:

MR PACANA

Respondent:

MS KELLEMS

File Number:

NCC 1388 of 2018

Judgment of:

Judge Terry

Hearing date:

29 May 2018

Date of Last Submission:

29 May 2018

Delivered at:

Newcastle

Delivered on:

29 May 2018

REPRESENTATION

No appearances required.

ORDERS

The application for review filed on 15 May 2018 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pacana & Kellems is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1388 of 2018

MR PACANA

Applicant

And

MS KELLEMS

Respondent

REASONS FOR JUDGMENT

Introduction

On 15 May 2018 Mr Pacana filed an Application for Review of a decision by a Registrar to refuse short service of his Initiating Application filed on 8 May 2018. The Registrar listed Mr Pacana’s application on 27 June 2018.
I have read Mr Pacana Initiating Application, Notice of Risk and Affidavit filed on 8 May 2018 and his Application for Review filed on 15 May 2018.
I intend to dispense with compliance with Rule 15.03 of the Federal Circuit Court Rules and to determine the Application for Review in chambers without an oral hearing.^[1]
[1] Quong & Rush (2017) FCCA 1765
I repeat my observations in Cantrell & Cantrell which were as follows:
The pressure of work in this court is such that it is unreasonable to expect that all Applications for Review of listings decisions will be listed in open court and be the subject of an oral hearing.
Unfortunately these applications tend to come in in volume when a Registry is already under severe pressure trying to deal with incoming work in a timely fashion. If judges are forced to list all such applications in open court and hear submissions about them it either compounds the problem for other litigants who are then squeezed out of hearing time or it adds to the unacceptable pressure on judicial officers who often feel compelled, out of concern for the welfare of children, to sit very long hours.[2]
[2] Cantrell & Cantrell [2017] FCCA 2565

Discussion

Mr Pacana & Ms Kellems are the parents of [X] born on 2004 and [Y] born 2010. They separated in 2015 and Mr Pacana is currently spending time with the children in week one each fortnight from Thursday to Monday and in week two each fortnight from Thursday overnight to Friday.
Mr Pacana filed his application for parenting orders on 8 May 2018 because of his belief that Ms Kellems intends to move from her current home in Suburb D to a home she is purchasing in Suburb A. Mr Pacana lives in Suburb B but he…

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 Pacana and Kellems

Details

AGLC: Pacana and Kellems [2018] FCCA 1293
Case: [2018] FCCA 1293
Decision Date: 29 May 2018

CaseChat Overview and Summary

In the matter of *Pacana and Kellems*, the Federal Circuit Court of Australia considered an application for review. The precise nature of the dispute between the parties, Pacana and Kellems, is not detailed in the provided text, beyond the fact that an application for review was filed by Pacana.

The central legal issue before Judge Terry was whether the application for review filed by Pacana on 15 May 2018 should be upheld. The court was required to determine the merits of this application and decide whether to grant the relief sought by Pacana.

Judge Terry dismissed the application for review. The reasoning behind this decision, and the specific legal principles applied by the court in reaching its conclusion, are not elaborated upon in the provided text. The court's final order was that the application be dismissed.

Orders

Orders of the court

The application for review filed on 15 May 2018 is dismissed.

Background

Background to the litigation

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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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