Einarsson & Joshi (No 2) - [2024] FedCFamC1F 820

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Einarsson & Joshi (No 2) [2024] FedCFamC1F 820

File number(s): MLC 8590 of 2021

Judgment of: CARTER J

Date of judgment: 29 November 2024

Catchwords: FAMILY LAW – PROPERTY & PARENTING – Where the father declined to participate in the proceedings – Where leave was granted to proceed undefended – Where final orders were made in the father’s absence – Where the father seeks to have the final orders set aside – Where the father’s non-participation in the final hearing was as a result of a myriad of social, financial and legal factors – Where the father was concurrently involved in Magistrates Court proceedings initiated by his previous lawyers – Where the father was briefly involved with a sovereign citizens group – Where the father was suffering from a range of physical and psychological symptoms in the lead up to the final hearing – Where the father contends that different orders may have been made had he participated in the proceedings – prejudice to the respondent partially addressed by an order for costs

Legislation:
Family Law Act 1975 (Cth) s 90

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10

Cases cited:
Barbey & Tuttle (2013) FLC 93-534

Clifford & Mountford (2006) 219 FLR 437

Division: Division 1 First Instance

Number of paragraphs: 54

Date of hearing: 22 November 2024

Place: Melbourne

Counsel for the Applicant: Mr Mellas

Solicitors for the Applicant Pearsons Lawyers Pty Ltd

Counsel for the Respondent: Ms Southey

Solicitors for the Respondent Lardners Solicitors
ORDERS

MLC 8590 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR EINARSSON

Applicant

AND:
MS JOSHI

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the orders made 24 June 2024 are set aside.
2.Within 60 days the father pay the mother’s costs for the final hearing on 27 May 2024 thrown away, fixed at $15,600.
3.The Amended Application in a Proceeding filed 30 September 2024 and the Response to an Application in a Proceeding filed 18 November 2024 are otherwise dismissed.
4.The Initiating Application filed 30 September 2024 be listed for a directions hearing before Judicial Registrar McGee on 12 February 2025.

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,…

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 Einarsson & Joshi (No 2)

Details

AGLC: Einarsson & Joshi (No 2) [2024] FedCFamC1F 820
Case: [2024] FedCFamC1F 820
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the matter of Einarsson & Joshi (No 2), the Federal Circuit and Family Court of Australia was presented with a situation where the father, Mr Einarsson, sought to have final orders set aside which had been made in his absence in family law proceedings. The primary legal issue before the court was whether the reasons provided by Mr Einarsson for his non-participation in the proceedings were sufficient to warrant setting aside the final orders. The court had to consider the reasons for Mr Einarsson's absence, whether there were grounds for making different orders had he participated, and whether any prejudice to the mother, Ms Joshi, could be adequately addressed.

The court examined the various factors that contributed to Mr Einarsson's absence, including his involvement with a sovereign citizens group, financial difficulties, and physical and psychological health issues. It was noted that Mr Einarsson had been appropriately engaged in the litigation until around August/September 2023, but thereafter faced a series of challenges that impeded his ability to participate in the final hearing. The court found that while Mr Einarsson's decision to not participate was conscious, the circumstances surrounding his absence were multifaceted and warranted consideration. The court also considered whether different orders might have resulted had Mr Einarsson participated and concluded that some arguments could have led to different outcomes. However, the court determined that the prejudice to Ms Joshi could be partially addressed by an order for costs.

The court found that the reasons provided by Mr Einarsson for his non-attendance were reasonable and sufficient to warrant setting aside the final orders. The court exercised its discretion judicially and considered the public interest in bringing an end to litigation. Consequently, the court ordered that the final orders made on 24 June 2024 be set aside and that Mr Einarsson pay Ms Joshi's costs for the final hearing, fixed at $15,600 within 60 days. The amended application and response were dismissed, and the initiating application was listed for a directions hearing.

Orders

Orders of the court

MLC 8590 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EINARSSON

Applicant

AND:

MS JOSHI

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the orders made 24 June 2024 are set aside.

2. Within 60 days the father pay the mother’s costs for the final hearing on 27 May 2024 thrown away, fixed at $15,600.

3. The Amended Application in a Proceeding filed 30 September 2024 and the Response to an Application in a Proceeding filed 18 November 2024 are otherwise dismissed.

4. The Initiating Application filed 30 September 2024 be listed for a directions hearing before Judicial Registrar McGee on 12 February 2025.

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

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Evidence

Evidence Before The Court

For the reasons that follow I am satisfied it is appropriate that the orders made 24 June 2024 be set aside. THE EVIDENCE For the purposes of the hearing the father relied on(a)his amended Application in a Proceeding filed 30 September 2024; (b)the affidavit in support filed 30 September 2024; and(c)the financial statement filed 30 September 2024. The mother relied on her Response to the Amended Application in a Proceeding filed 18 November 2024 and the affidavit filed with that Response dated 18 November 2024. THE LAW The approach to be adopted by the Court in relation to applications of this nature is well established; see Barbey & Tuttle (2013) FLC 93-534; Clifford & Mountford (2006) 219 FLR 437. The relevant considerations in determining whether or not to vary or set aside orders include:(a)the reason for the party’s non-appearance and whether that explanation is reasonable;(b)whether there are arguments that could be advanced by the applicant that may reasonably lead to the making of different orders to those made; and(c)whether there is prejudice to the respondent that cannot be adequately addressed by the Court. Matters relevant to those three criteria include;(a)whether a party with notice of the proceedings disregarded the opportunity of appearing at and participated in the trial;(b)whether the applicant delayed in bringing the application to set aside the orders; and(c)the conduct of the applicant since the orders were made. There is no requirement that the Court give one consideration more weight than any other. The discretion is unfettered. However, it is to be exercised judicially. The Court is also to consider the public interest in bringing an end to litigation. It is agreed the father did not delay in bringing his application to set aside the orders. There is also no argument regarding his conduct since the orders were made.Explanation for failure to attend The father bears the onus of satisfying the Court that he has a reasonable explanation for his failure to attend on 27 May 2024. It is not in dispute that the father was well aware of the final hearing date. It is not in dispute that he was served with the mother’s trial material – although he blocked many attempts to serve him – and that he was squarely on notice that the matter could proceed in his absence. It is also not in contention that he filed no trial material. There is also no doubt that the father made a conscious, albeit woefully ill-informed decision not to attend Court or participate in the hearing on 27 May 2024. However, the father’s behaviour in this case does not include a persistent failure to comply with court orders. Nor did he fail to appear at other court events. Rather, what the chronology reveals is that until around August/September 2023 the father remained appropriately engaged in litigation, including attending court events, instructing his lawyers and filing documents. It is the father’s evidence that from around August 2023 and until the final hearing in May 2024 he faced a plethora of legal, financial and physical and psychological health issues that impacted his ability to meaningfully engage with the proceedings – and that taken altogether these matters provide a reasonable explanation as to his failure to file trial material and attend at the final hearing in May 2024. These circumstances included him becoming involved with a sovereign citizens group either in late 2023, or early 2024, which the father now deeply regrets. The father’s engagement with the sovereign citizens group

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 8590 of 2021
Judgment of:	CARTER J
Date of judgment:	29 November 2024
Catchwords:	FAMILY LAW – PROPERTY & PARENTING – Where the father declined to participate in the proceedings – Where leave was granted to proceed undefended – Where final orders were made in the father’s absence – Where the father seeks to have the final orders set aside – Where the father’s non-participation in the final hearing was as a result of a myriad of social, financial and legal factors – Where the father was concurrently involved in Magistrates Court proceedings initiated by his previous lawyers – Where the father was briefly involved with a sovereign citizens group – Where the father was suffering from a range of physical and psychological symptoms in the lead up to the final hearing – Where the father contends that different orders may have been made had he participated in the proceedings – prejudice to the respondent partially addressed by an order for costs
Legislation:	Family Law Act 1975 (Cth) s 90 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10
Cases cited:	Barbey & Tuttle (2013) FLC 93-534 Clifford & Mountford (2006) 219 FLR 437
Division:	Division 1 First Instance
Number of paragraphs:	54
Date of hearing:	22 November 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Mellas
Solicitors for the Applicant	Pearsons Lawyers Pty Ltd
Counsel for the Respondent:	Ms Southey
Solicitors for the Respondent	Lardners Solicitors

MLC 8590 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR EINARSSON Applicant
AND:	MS JOSHI Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	29 NOVEMBER 2024