Ripley and Gregg - [2014] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIPLEY & GREGG

[2014] FCCA 2739

Catchwords:
FAMILY LAW – Practice and procedure – adjournment – summary dismissal of proceedings – meaning of ordinarily resident – dispute as to existence of de facto relationship – costs.

Legislation:

Family Law Act 1975, ss.4, 4AA, 90SB, 90SK, 117

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, rr.11.01, 11.02, 11.05,13.03A, 13.03B, 13.10, 21.02

Arman & Arman [2009] FamCA 8
Crown v Barnett London Borough Council, ex parte Shah [1983] 2 AC 309
Gitane & Velacruz [2007] FamCA 183
Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14; (1996) 136 ALR 251
Jacobs & Vale (2008) FMCAFam 641
Re Vassis: Ex parte Leung [1986] 64 ALR 407
Woodhead & Woodhead [1998] FLC 92-813, (1998) 23 Fam LR 559

Applicant:

MR RIPLEY

Respondent:

MS GREGG

File Number:

SYC 1501 of 2014

Judgment of:

Judge Monahan

Hearing date:

16 October 2014

Date of Last Submission:

16 October 2014

Delivered at:

Sydney

Delivered on:

16 October 2014

REPRESENTATION

Solicitors for the Applicant:

Self Represented Litigant (No Appearance)

Solicitors for the Respondent:

Ms Emerson of Pearson Emerson Family Lawyers

ORDERS

THE COURT FINDS THAT:

The Applicant was aware of the proceedings today as evidenced by his adjournment request sent via email to Chambers on todays’ date requesting an adjournment until early 2015 due to medical problems and being unable to acquire the legal representation for the purposes of the mention and summary dismissal hearing (Exhibit “A1”).
The Applicant was aware that if he did not appear today, the Respondent had leave of the Court to proceed with the Respondent’s application for Summary Dismissal.

THE COURT ORDERS THAT:

The Applicant’s request for an adjournment be refused.
The Initiating Application filed 17 March 2014 be summarily dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of $4,867.00 such sum to be paid within three (3) months of today’s date.
The Respondent cause the Applicant to be served with a sealed copy of these orders, by way of email at the email address: (omitted)
All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.These Orders were made following an undefended hearing for summary dismissal of the Applicant’s Initiating Application on 16 October 2014.
B.The Applicant was called outside of Court at 10:00 am and 12:35pm today and there was no response to the call.
C.The Respondent was instructed to seek an application for costs on an indemnity basis following the undefended hearing, however the Court determined that given the circumstances, it was appropriate to only award costs on a party/party basis pursuant to the Federal Circuit Court Rules 2001. Should these Orders be set aside then the Respondent is likely to re-agitate that costs should be awarded on an indemnity basis.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT

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 Ripley and Gregg

Details

AGLC: Ripley and Gregg [2014] FCCA 2739
Case: [2014] FCCA 2739
Decision Date: 16 October 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Monahan considered an application for summary dismissal brought by the Respondent against the Applicant. The Applicant had sought an adjournment of the proceedings due to medical issues and an inability to secure legal representation.

The central legal issue before the Court was whether to grant the Applicant's request for an adjournment or to proceed with the Respondent's application for summary dismissal. The Court was also required to determine the appropriate costs order.

Judge Monahan reasoned that the Applicant was aware of the hearing and the potential for the Respondent to proceed with the summary dismissal application in his absence, as evidenced by an email requesting an adjournment. The Court noted that the Applicant had been called twice during the hearing with no response. Consequently, the Court refused the adjournment request and summarily dismissed the Applicant's Initiating Application. The Court ordered the Applicant to pay the Respondent's costs fixed at $4,867.00, payable within three months, and that all other extant applications be dismissed.

Orders

Orders of the court

THE COURT FINDS THAT:

The Applicant was aware of the proceedings today as evidenced by his adjournment request sent via email to Chambers on todays’ date requesting an adjournment until early 2015 due to medical problems and being unable to acquire the legal representation for the purposes of the mention and summary dismissal hearing (Exhibit “A1”).

The Applicant was aware that if he did not appear today, the Respondent had leave of the Court to proceed with the Respondent’s application for Summary Dismissal.

THE COURT ORDERS THAT:

The Applicant’s request for an adjournment be refused.

The Initiating Application filed 17 March 2014 be summarily dismissed.

The Applicant pay the Respondent’s costs fixed in the amount of $4,867.00 such sum to be paid within three (3) months of today’s date.

The Respondent cause the Applicant to be served with a sealed copy of these orders, by way of email at the email address: (omitted)

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. These Orders were made following an undefended hearing for summary dismissal of the Applicant’s Initiating Application on 16 October 2014.

B. The Applicant was called outside of Court at 10:00 am and 12:35pm today and there was no response to the call.

C. The Respondent was instructed to seek an application for costs on an indemnity basis following the undefended hearing, however the Court determined that given the circumstances, it was appropriate to only award costs on a party/party basis pursuant to the Federal Circuit Court Rules 2001. Should these Orders be set aside then the Respondent is likely to re-agitate that costs should be awarded on an indemnity basis.

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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