WALDERS & MCAULIFFE - [2020] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDERS & MCAULIFFE

[2020] FCCA 1541

Catchwords:
FAMILY LAW – Practice and procedure – Change in operational requirements due to COVID-19 – Whether hearing can properly and safely proceed by way of remote hearing – adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), s.90RD

Cases cited:

Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323

R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020] NSWSC 382

Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Applicant:

MR WALDERS

Respondent:

MR MCAULIFFE

File Number:

SYC 8000 of 2018

Judgment of:

Judge Harman

Hearing date:

7 May 2020

Date of Last Submission:

7 May 2020

Delivered at:

Parramatta

Delivered on:

7 May 2020

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondent:

Mr Kerr

Solicitors for the Respondent:

Lane & Lane

ORDERS

Vacate the scheduled hearing of these proceedings listed 15 – 18 June 2020.
The matter is adjourned for further mention and directions to 26 June 2020 at 9:30am.
Note: The purpose of a vacated trial and adjournment is to allow events to unfold as regards the present COVID-19 pandemic and any variations in NSW public health regulations and/or Court policies as might permit an in person to then proceed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 8000 of 2018

MR WALDERS

Applicant

And

MR MCAULIFFE

Respondent

REASONS FOR JUDGMENT

These proceedings are listed today for call over. The matter was previously allocated trial dates of four days commencing 15 June 2020.
Upon the matter being called, counsel appears for and on behalf of the respondent. There is no appearance by the applicant. I do not record that as criticism. There may be any number of reasons why it is so.
The purpose of the matter being listed for call over is to determine whether the hearing is ready to proceed and, if so, whether the hearing can properly and safely proceed by way of remote hearing utilising the Microsoft Teams platform.
I make clear from the outset that I am not satisfied that the matter can or should proceed by remote hearing. That is not a proposition that is in any way cavilled with by counsel for the respondent. Indeed, it is a proposition advanced and adopted by counsel for the respondent.
The subject matter of the proceedings is a determination of jurisdiction under section 90RD of the Family Law Act 1975 (Cth) as to whether a de facto relationship has ever subsisted between the parties and, if so, whether that relationship has subsisted for the requisite time and terminated no later than would permit an application to be made for relief under Part VIIIAB of the Act. There is clearly…

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 WALDERS & MCAULIFFE

Details

AGLC: WALDERS & MCAULIFFE [2020] FCCA 1541
Case: [2020] FCCA 1541
Decision Date: 7 May 2020

CaseChat Overview and Summary

In *Walders & McAuliffe*, heard by Judge Harman, the parties were involved in family law proceedings. The central dispute concerned whether a scheduled hearing, due to take place from 15 to 18 June 2020, could properly and safely proceed by way of a remote hearing, or if an adjournment was necessary due to the prevailing COVID-19 pandemic.

The court was required to determine the operational feasibility and safety of conducting the hearing remotely, considering the impact of the COVID-19 pandemic on the court's ability to conduct in-person hearings. This involved assessing whether the existing circumstances necessitated an adjournment to allow for potential future changes in public health regulations or court policies that might permit an in-person hearing.

Judge Harman ordered that the scheduled hearing be vacated and the matter adjourned for further mention and directions to 26 June 2020. This decision was made to allow events to unfold concerning the COVID-19 pandemic and any subsequent variations in NSW public health regulations or court policies, with the aim of permitting an in-person hearing at a later date if circumstances allowed.

Orders

Orders of the court

Vacate the scheduled hearing of these proceedings listed 15 – 18 June 2020.

The matter is adjourned for further mention and directions to 26 June 2020 at 9:30am.

Note: The purpose of a vacated trial and adjournment is to allow events to unfold as regards the present COVID-19 pandemic and any variations in NSW public health regulations and/or Court policies as might permit an in person to then proceed.

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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