Pagan and Beattie (No.2) - [2017] FCCA 1402

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGAN & BEATTIE (No.2) [2017] FCCA 1402

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application by maternal grandfather and step-grandmother to intervene in parenting proceedings – standing – whether leave to intervene should be granted.

Legislation:

Family Law Act 1975, ss.65C, 92

Federal Circuit Court Rules 2001, r.11.03
Family Law Rules 2004, r.6.05

Cases cited:
Wayne & Dillon & Dillon [2008] FamCAFC 204

Applicant: MR PAGAN

Respondent: MS BEATTIE

File Number: PAC 5622 of 2016

Judgment of: Judge Obradovic

Hearing date: 6 April 2017

Date of Last Submission: 4 May 2017

Delivered at: Parramatta

Delivered on: 7 July 2017
REPRESENTATION

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Puleo Lawyers

Appearing for the Respondent: Ms Wrmalaratne

Solicitors for the Respondent: Rowley & Ross Lawyers
ORDERS
(1)The Application in a Case filed 2 February 2017 by Mr R Beattie and Ms M Beattie is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pagan & Beattie (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA
PAC 5622 of 2016

MR PAGAN
Applicant
And

MS BEATTIE
Respondent
REASONS FOR JUDGMENT
Introduction
1.On 30 November 2016, the Applicant father commenced proceedings for parenting orders in respect of the parties’ only child, [X] born on (omitted) 2014. The Respondent to those proceedings is the mother of the child. A recovery order was made by this Court on 21 December 2016 in respect of the child.
2.By way of Application in a Case filed 2 February 2017, Mr R Beattie and Ms M Beattie sought leave to be joined as parties to the proceedings. Mr R Beattie is the maternal grandfather of the child, and Ms M Beattie is his wife (together referred to as “maternal grandparents”).
3.On 3 May 2017, the Application in a Case filed by Mr R Beattie and Ms M Beattie on 2 February 2017 was dismissed.
4.On 9 June 2017, by consent and pursuant to Rule 16.05(2) of the Federal Circuit Court Rules 2001 the order of 3 May 2017, dismissing the Application in a Case was set aside.
5.The Applicants in that Application in a Case were directed to file submissions in support of their application for joinder by 4pm on 16 June 2017. Those submissions were sent to the Registry by post under cover of letter dated 14 June 2017 and received by the Court on 19 June 2017.
6.By way of letter dated 19 April 2017 sent to the Court’s Associate, the solicitors for the mother clarified that the mother’s position is that she “neither opposes nor consents to the joinder and is happy for that issue to be left entirely to the Court.” Accordingly, the solicitors have been instructed to make no submissions in support or against such an order.
7.Submissions made on behalf of the father were received by the Court on 24 April 2017 by email to…

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 Pagan and Beattie (No.2)

Details

AGLC: Pagan and Beattie (No.2) [2017] FCCA 1402
Case: [2017] FCCA 1402
Decision Date: 7 July 2017

CaseChat Overview and Summary

This matter concerned an application filed by Mr R Beattie and Ms M Beattie, seeking to set aside a previous order made by the court. The application was heard by Judge Obradovic in the Supreme Court of Victoria.

The central legal issue before the court was whether the applicants had established sufficient grounds to justify setting aside the prior order. This required the court to consider the principles governing the setting aside of consent orders, particularly in circumstances where one party alleges they did not fully understand the implications of the order at the time it was made.

Judge Obradovic's reasoning focused on the established legal principles for setting aside consent orders. The court noted that such orders are generally treated with a high degree of finality and can only be set aside in limited circumstances, such as where there has been fraud, misrepresentation, or a fundamental mistake as to the nature of the order. The applicants failed to demonstrate that any of these exceptional circumstances were present. The court found that the applicants had not provided sufficient evidence to establish that they did not understand the nature or effect of the consent order when it was made, nor had they demonstrated any vitiating factors that would warrant its rescission.

Consequently, the application filed by Mr R Beattie and Ms M Beattie on 2 February 2017 was dismissed.

Orders

Orders of the court

(1) The Application in a Case filed 2 February 2017 by Mr R Beattie and Ms M Beattie 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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