ERVINE & NASSAR - [2020] FamCA 1028

FAMILY COURT OF AUSTRALIA

ERVINE & NASSAR

[2020] FamCA 1028

FAMILY LAW – PRACTICE AND PROCEDURE – application for an adjournment – where the applicant’s lawyer is no longer in a position to instruct counsel due to unforeseen circumstances – where the applicant seeks an adjournment to a date when his lawyer can be present throughout the final hearing – where the respondent opposes that application – where an adjournment would result in a delay to the proceedings of approximately six months – where it is not in the child’s best interest for this matter to be delayed – order that the applicant’s application be dismissed.

Family Law Act 1975 (Cth) s 69ZN, 97
Family Law Rules 2004 (Cth)

Aon Risk Services v Australian National University [2009] 239 CLR 175
Mertens & Mertens [2016] FamCAFC 136

APPLICANT:

Mr Ervine

RESPONDENT:

Ms Nassar

FILE NUMBER:

MLC

10512

2018

DATE DELIVERED:

24 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

24 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Borger

SOLICITOR FOR THE APPLICANT:

Slater and Gordon

COUNSEL FOR THE RESPONDENT:

Mr Atkinson

SOLICITOR FOR THE RESPONDENT:

Cantwell Family Lawyers

Orders

That the applicant be granted leave to make an oral application for adjournment of the hearing listed to commence before me on 25 November 2020.
That the applicant’s application for an adjournment of the hearing made this day be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ervine & Nassar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10512 of 2018

Mr Ervine

Applicant

And

Ms Nassar

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This matter is listed for final hearing before me to commence tomorrow, 25 November 2020. The applications before the Court relate to future parenting arrangements in respect of the parties’ child, X, who is aged five years. There are also competing property applications, each party seeking an adjustment of their property interests.
The matter has been listed for mention today at the request of the applicant. He seeks leave to make an oral application for an adjournment of the final hearing.
The applicant, Mr Ervine, is aged 44 years. He is employed as a leader with a community service organisation.
The respondent, Ms Nassar, is aged 45 years and she is engaged in home duties.
The parties commenced their relationship in 2013 and separated on a final basis in late 2017. There is one child of that relationship, X, who…

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 ERVINE & NASSAR

Details

AGLC: ERVINE & NASSAR [2020] FamCA 1028
Case: [2020] FamCA 1028
Decision Date: 24 November 2020

CaseChat Overview and Summary

In the matter of ERVINE & NASSAR, heard before Johns J, the applicant sought an adjournment of the final hearing. The basis for this application was that the applicant's lawyer was no longer able to instruct counsel due to unforeseen circumstances and wished to be present throughout the entirety of the final hearing. The respondent opposed this application.

The central legal issue before the court was whether to grant the applicant's request for an adjournment, considering the respondent's opposition and the potential delay to the proceedings. The court was required to weigh the applicant's circumstances against the interests of the parties and, crucially, the best interests of the child involved in the proceedings.

Johns J dismissed the applicant's application for an adjournment. The court reasoned that granting the adjournment would result in a delay of approximately six months. This delay was considered contrary to the best interests of the child, which is a paramount consideration in family law matters. Consequently, the court exercised its discretion to refuse the adjournment.

Orders

Orders of the court

That the applicant be granted leave to make an oral application for adjournment of the hearing listed to commence before me on 25 November 2020.

That the applicant’s application for an adjournment of the hearing made this day be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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