Haines & Rader (No 3) - [2022] FedCFamC1F 1007

Federal Circuit and Family Court of Australia
(DIVISION 1)
Haines & Rader (No 3) [2022] FedCFamC1F 1007

File number: SYC 1641 of 2019

Judgment of: BRASCH J

Date of judgment: 20 December 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside orders made three months after application to adjourn trial was dismissed and orders made for strangers to the marriage to have their costs – Explanation and evidence of absence inadequate – Prejudice to wife – Prejudice to strangers to the marriage – Application dismissed

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:
Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40

Barbey & Tuttle [2013] FamCAFC 44

Haines & Rader (No 2) [2022] FedCFamC1F 685

Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200

Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384

Taylor v Taylor (1979) 143 CLR 1

Wilkes and Wilkes (1981) FLC 91-060

Division: Division 1 First Instance

Number of paragraphs: 63

Date of hearing: 19 December 2022

Place: Sydney

Counsel for the Applicant: Mr Turnball

Solicitor for the Applicant: Morson Law

Solicitor for the Respondent: Dettmann Phair Lawyers
ORDERS

SYC 1641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR RADER

Applicant

AND:
MS HAINES

Respondent

order made by:

BRASCH J

DATE OF ORDER:

20 DECEMBER 2022

THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding received in chambers 9 December 2022 to set aside the orders of 5 September 2022 and 6 September 2022 is dismissed.
2.The husband pay the wife’s costs of and incidental to the application in the sum of $5,184.40 (GST inclusive).

THE COURT NOTES THAT:
A.The timing for the payment of the costs order will be the subject of Orders in the substantive proceedings.

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 the pseudonym Haines & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:

This matter was set down for final hearing on 6 and 7 September 2022. Upon the husband’s failure to attend the final hearing on 6 September 2022, and dismissal of his email requests to adjourn the trial, the matter proceeded. It concluded on 6 September and judgment was reserved, but with…

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 Haines & Rader (No 3)

Details

AGLC: Haines & Rader (No 3) [2022] FedCFamC1F 1007
Case: [2022] FedCFamC1F 1007
Decision Date

CaseChat Overview and Summary

In the case of Haines & Rader (No 3), the Federal Circuit and Family Court of Australia dealt with an application by the husband to set aside orders made three months after his application to adjourn the trial was dismissed. The dispute involved the husband's failure to attend the final hearing, leading to the dismissal of his email requests to adjourn the trial. The legal issues centered on the husband's explanation for his absence and whether the court should exercise its discretion to set aside the orders under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The court examined the husband's reasons for his absence, finding that his claims of illness were not supported by adequate evidence or explanation. It was noted that the husband had been well aware of the trial dates and had the opportunity to be involved in the proceedings. The court highlighted that the husband had been given procedural fairness on multiple occasions but chose not to participate. The husband's application to set aside the orders was seen as an attempt to re-run his unsuccessful adjournment application. The court concluded that setting aside the orders would cause prejudice to the wife and the strangers to the marriage, and the husband had failed to justify why the orders should be set aside.

The court dismissed the husband's application and ordered him to pay the wife's costs of and incidental to the application, amounting to $5,184.40, GST inclusive. The timing for the payment of the costs order was to be determined in the substantive proceedings.

Orders