Tamlyn & Tamlyn - [2024] FedCFamC2F 43

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamlyn & Tamlyn [2024] FedCFamC2F 43

File number(s): PAC 1404 of 2017

Judgment of: JUDGE TAGLIERI

Date of judgment: 22 January 2024

Catchwords: FAMILY LAW – Application for Review – Review of Deputy Registrar’s decision to refuse filing of an Initiating Application – where final parenting and property orders made by a Judge of the Court in 2020 – finding that the Initiating Application deficient and not suitable for filing – application dismissed

Legislation:
Family Law Act 1975 (Cth) ss 117, 117(1), 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 56, 174, 192(2)(f), 192(4)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1 item 13, ch 2 pt 2.5, ch 14, rr 1.02, 1.04,2.14(1), 2.14(2), 2.18, 2.24, 2.24(3), 5.08(1)(b), 5.08(3), 6.06(5)(a), 8.15, 13.03, 14.05, 14.05(2), 14.07

Central Practice Directions 3.6

Cases cited:
Kennon & Kennon [1997] FamCA 27

Walton v Gardiner [1993] HCA 77

Division: Division 2 Family Law

Number of paragraphs: 30

Date of hearing: 17 January 2024

Place: Hobart

For the Applicant: In person

Solicitor for the Respondent: Mr Beckman, VRT Lawyers
ORDERS

PAC 1404 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TAMLYN

Applicant

AND:
MS TAMLYN

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

22 JANUARY 2024

THE COURT ORDERS THAT:
1.The Application for Review filed 5 January 2024 is dismissed.
2.There be no order as to costs.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

This judgment concerns an Application for Review filed 5 January 2024 (“the Review”).
The Applicant Mr Tamlyn (“the Applicant”) seeks review of a decision of a Deputy Registrar made on 20 December 2023, rejecting for filing his Initiating Application of 15 December 2023 and an Affidavit filed in support (“the documents”). The Respondent is Ms Tamlyn (“the Respondent”).
At the time of rejecting the documents for filing, the Deputy Registrar gave written reasons which are contained in a letter dated 20 December 2023 (“the decision”). The reasons were in the following terms:
1.In relation to the Initiating Application document, the orders sought are not drafted in a manner capable of being made as enforceable…

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 Tamlyn & Tamlyn

Details

AGLC: Tamlyn & Tamlyn [2024] FedCFamC2F 43
Case: [2024] FedCFamC2F 43
Decision Date: 22 January 2024

CaseChat Overview and Summary

The case of Tamlyn & Tamlyn involves an application for review brought by Mr. Tamlyn against the decision of a Deputy Registrar, who refused to file his Initiating Application. The application was in relation to the final parenting and property orders made by a Judge of the Court in 2020. Ms. Tamlyn was the respondent in this matter. The Federal Circuit and Family Court of Australia (Division 2) was the court that heard the application for review. The Deputy Registrar had previously found the Initiating Application to be deficient and unsuitable for filing, leading to the dismissal of the application for review. The court was tasked with determining whether the Deputy Registrar's decision was correct and whether the application should be allowed to proceed.

The legal issues before the court involved the criteria for filing an Initiating Application in family law matters and the procedural requirements for seeking a review of a Deputy Registrar's decision. The court had to consider the adequacy of the application and the appropriateness of the Deputy Registrar's refusal to file it. It also needed to assess the validity of the review application and whether there were any grounds for setting aside the Deputy Registrar's decision.

Judge Tagliari, in delivering the judgment, considered the evidence and submissions presented by both parties. The court found that the Initiating Application was indeed deficient, as it did not comply with the necessary legal standards for such filings. The application failed to provide sufficient detail and did not adhere to the procedural requirements set out in the Family Law Act 1975. The Deputy Registrar's decision to refuse the filing was deemed to be correct, and the application for review was dismissed. The court did not deem it necessary to make any order as to costs.

The final orders of the court were that the application for review was dismissed, and no order was made as to costs. This decision reflects the court's determination that the Initiating Application did not meet the necessary criteria for filing and that the Deputy Registrar's decision was justified. The form of the order is subject to review for minor typographical or grammatical errors, or for recording variations to the order as per the relevant rules.

Orders

Orders of the court

PAC 1404 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR TAMLYN

Applicant

AND:

MS TAMLYN

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

22 JANUARY 2024

THE COURT ORDERS THAT:

1. The Application for Review filed 5 January 2024 is dismissed.

2. There be no order as to costs.

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):	PAC 1404 of 2017
Judgment of:	JUDGE TAGLIERI
Date of judgment:	22 January 2024
Catchwords:	FAMILY LAW – Application for Review – Review of Deputy Registrar’s decision to refuse filing of an Initiating Application – where final parenting and property orders made by a Judge of the Court in 2020 – finding that the Initiating Application deficient and not suitable for filing – application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 117, 117(1), 117(2A) Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 56, 174, 192(2)(f), 192(4) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1 item 13, ch 2 pt 2.5, ch 14, rr 1.02, 1.04,2.14(1), 2.14(2), 2.18, 2.24, 2.24(3), 5.08(1)(b), 5.08(3), 6.06(5)(a), 8.15, 13.03, 14.05, 14.05(2), 14.07 Central Practice Directions 3.6
Cases cited:	Kennon & Kennon [1997] FamCA 27 Walton v Gardiner [1993] HCA 77
Division:	Division 2 Family Law
Number of paragraphs:	30
Date of hearing:	17 January 2024
Place:	Hobart
For the Applicant:	In person
Solicitor for the Respondent:	Mr Beckman, VRT Lawyers

PAC 1404 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TAMLYN Applicant
AND:	MS TAMLYN Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	22 JANUARY 2024