Pritchard & Bowman - [2024] FedCFamC2F 1491

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pritchard & Bowman [2024] FedCFamC2F 1491

File number: BRC 15641 of 2022

Judgment of: JUDGE BLAKE

Date of judgment: 25 October 2024

Catchwords: FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued.

Legislation:
Family Law Act 1975 (Cth) Pt 7 Div 10, ss 65C, 69C.

Family Law Rules 2004 (Cth) r 8.02(5).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.11(5), 10.02, 10.02(2), 10.02(5).

Cases cited:
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615

Henlon & Farnish [2019] FamCA 859

Oberle & Oberle [2012] FMCAfam 875

T and N [2003] FamCA 1129

Division: Division 2 Family Law

Number of paragraphs: 27

Date of hearing: 17 October 2024

Place: Melbourne

Solicitor for the Applicant: Mr Kolo of Best Wilson Buckley Family Law

Solicitor for the Respondent: Self-represented litigant

Solicitor for the Independent Children's Lawyer: Mr Kingston of Norman & Kingston
ORDERS

BRC 15641 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PRITCHARD

Applicant

AND:
MS BOWMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:
1.The Orders of 10 September 2024 be discharged.

AND THE COURT NOTES THAT:
A.The father filed a Notice of Discontinuance on 16 August 2024, which had effect under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The mother never filed a Response. The proceeding has been discontinued.

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).
REASONS FOR JUDGMENT
JUDGE BLAKE:

The question before the Court is whether the Court is able to make any orders in parenting proceedings in circumstances where the father has filed a Notice of Discontinuance,…

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 Pritchard & Bowman

Details

AGLC: Pritchard & Bowman [2024] FedCFamC2F 1491
Case: [2024] FedCFamC2F 1491
Decision Date: 25 October 2024

CaseChat Overview and Summary

In the matter of Mr Pritchard v Ms Bowman, the Applicant sought a review of the Registrar's decision that ordered the matter be set down for an undefended hearing after a notice of discontinuance had been filed. The Applicant had filed a notice of discontinuance on 16 August 2024, which had effect under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The mother did not file a response, and the Court was no longer seized of the matter. The Independent Children's Lawyer, who had urged the Registrar to set down the matter for an undefended hearing, had no standing to maintain the proceeding. The Applicant argued that the Registrar's orders were of no effect and sought an order for the discontinuance of the proceeding.

The legal issues before the Court were whether the Registrar had jurisdiction to order a hearing after the notice of discontinuance was filed and whether the Independent Children's Lawyer had standing to maintain the proceeding. The Court found that the Registrar's orders were of no effect because the Court was no longer seized of the matter after the notice of discontinuance was filed. The Court also found that the Independent Children's Lawyer had no standing to maintain the proceeding because the proceeding had been discontinued by the Applicant's notice of discontinuance.

The Court upheld the Applicant's application for review and discharged the Registrar's orders of 10 September 2024. The Court noted that the proceeding had been discontinued by the Applicant's notice of discontinuance filed on 16 August 2024. 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. The Court's reasons for judgment may also be subject to review.

Orders

Orders of the court

BRC 15641 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PRITCHARD

Applicant

AND:

MS BOWMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Orders of 10 September 2024 be discharged.

AND THE COURT NOTES THAT:

A. The father filed a Notice of Discontinuance on 16 August 2024, which had effect under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The mother never filed a Response. The proceeding has been discontinued.

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:	BRC 15641 of 2022
Judgment of:	JUDGE BLAKE
Date of judgment:	25 October 2024
Catchwords:	FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued.
Legislation:	Family Law Act 1975 (Cth) Pt 7 Div 10, ss 65C, 69C. Family Law Rules 2004 (Cth) r 8.02(5). Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.11(5), 10.02, 10.02(2), 10.02(5).
Cases cited:	AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 Henlon & Farnish [2019] FamCA 859 Oberle & Oberle [2012] FMCAfam 875 T and N [2003] FamCA 1129
Division:	Division 2 Family Law
Number of paragraphs:	27
Date of hearing:	17 October 2024
Place:	Melbourne
Solicitor for the Applicant:	Mr Kolo of Best Wilson Buckley Family Law
Solicitor for the Respondent:	Self-represented litigant
Solicitor for the Independent Children's Lawyer:	Mr Kingston of Norman & Kingston

BRC 15641 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PRITCHARD Applicant
AND:	MS BOWMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	25 OCTOBER 2024