Gupta and Gupta - [2018] FamCAFC 71

FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA

[2018] FamCAFC 71

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Adjournment - Application for adjournment made by appellant by email to the registry two days before the appeal hearing – Inadequate medical evidence – Where the appellant was able to attend court before the primary judge and prepare applications and affidavits during the time covered by his medical certificate – Where the appellant also sought an adjournment on the basis that he had not adequately prepared his appeal – Where the appellant had ample time to prepare his appeal – Application for adjournment dismissed.

Family Law Act 1975 (Cth) s 102QB
Family Law Rules 2004 (Cth) rr 22.13(3), 22.30

Gupta & Gupta (No. 2) [2017] FamCAFC 232

APPLICANT:

Mr Gupta

RESPONDENT:

Ms Gupta

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

5828

2008

APPEAL NUMBER:

2017

DATE DELIVERED:

12 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Pascoe CJ, Ryan & Aldridge JJ

HEARING DATE:

12 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 August 2017

LOWER COURT MNC:

[2017] FCCA 1843

REPRESENTATION

THE APPLICANT:

No appearance

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

The appellant’s application for an adjournment 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 Gupta & Gupta 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 95 of 2017
File Number: PAC 5828 of 2008

Mr Gupta

Applicant

And

Ms Gupta

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

The appellant, Mr Gupta (“the father”), by a series of emails sent to the appeals registry, seeks an adjournment of the appeal on the grounds that he is not well. The respondent mother, Ms Gupta (“the mother”) and the Independent Children’s Lawyer (“ICL”) oppose the adjournment.
The father appeals against parenting orders made by Judge Hughes on 11 August 2017. The orders provide that the mother is to have sole parental responsibility for the parties’ two children, who were born on 8 February 2005 and 19 May 2009. The children are to live with the mother and are not to spend any time with the father unless the parties otherwise agree in writing. The father was permitted to send gifts, cards and letters to the children once…

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 Gupta and Gupta

Details

AGLC: Gupta and Gupta [2018] FamCAFC 71
Case: [2018] FamCAFC 71
Decision Date: 12 April 2018

CaseChat Overview and Summary

The case of Gupta and Gupta involved a dispute between two parties, with the matter being heard in the relevant Australian court. The specifics of the nature of the dispute are not detailed in the provided text, but it involved some form of legal contention between the parties named Gupta. The court was tasked with resolving the issues presented by the appellant, who sought an adjournment in the proceedings.

The legal issues before the court centred on the appellant's request for an adjournment. The court needed to determine whether the reasons provided by the appellant warranted a postponement of the hearing. This involved assessing the circumstances and the merits of the application, including the necessity and the potential impact on the proceedings and the other party.

The court examined the reasons for the adjournment application and concluded that they did not justify a postponement. The decision was made based on the merits of the application, considering factors such as the appellant's preparedness and the potential prejudice to the respondent if the adjournment was granted. The court found that the appellant's reasons were insufficient to warrant an adjournment and dismissed the application accordingly.

The final order of the court was that the appellant's application for an adjournment be dismissed. The form of the order is subject to the entry of the order in the court’s records, ensuring that the decision is formally documented and can be referenced in future proceedings.

Orders

Orders of the court

The appellant’s application for an adjournment 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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