Lahiri & Saha (No 4) - [2023] FedCFamC1F 182

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lahiri & Saha (No 4) [2023] FedCFamC1F 182

File number(s): BRC 8518 of 2020

Judgment of: JARRETT J

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – PROPERTY – Where there is an application to set aside previous orders – Where the applicant did not appear when the orders were made – Where the applicant has failed to reasonably explain her absence – Where the applicant also failed to appear at the hearing of the application to set aside the orders – Where the applicant has failed to establish that any other order would have been made – Application dismissed

Legislation:
Bankruptcy Act1966 (Cth) ss 137ZQ, 139ZR ,139ZS(1A)

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

Cases cited:
Buljubasic & Buljubasic [1999] FamCA 474

Mathews v MacDonnell [2011] FCA 825

Saha & Lahiri (No 2) [2022] FedCFamC1A 181

Taylor v Taylor [1979] 143 CLR 1

Division: Division 1 First Instance

Number of paragraphs: 79

Date of hearing: 23 February 2023

Place: Brisbane

Solicitor for the Applicant: Litigant in person

Solicitor for the First Respondent: Litigant in person (Did not participate)

Solicitor for the Second Respondent: No appearance

Solicitors for the Second Respondent: Stacks Law Firm

ORDERS

BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LAHIRI

Applicant

AND:
MS SAHA

First Respondent

MR FELTOS

Second Respondent

order made by:

JARRETT J

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:
1.The application in a proceeding filed 14 February, 2023 is dismissed.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

These reasons relate to an application in a proceeding filed on 14 February, 2023.
There is no appearance for the applicant to the application in a proceeding. I could dismiss the proceedings for want of an appearance by her, but it seems to me that it is probably as well to deal with the application as best I can on its merits.
There is an affidavit that was filed on 14 February, 2023 which seems to support the application in a proceeding. The affidavit is mostly submission, but it does contain some evidence. I treat the affidavit of…

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 Lahiri & Saha (No 4)

Details

AGLC: Lahiri & Saha (No 4) [2023] FedCFamC1F 182
Case: [2023] FedCFamC1F 182
Decision Date

CaseChat Overview and Summary

The case of Lahiri and Saha (No 4) was heard in the Federal Circuit and Family Court of Australia, Division 1, on 23 February 2023. The case involved an application to set aside previous orders made in the absence of the applicant, Ms Saha. Ms Saha sought to have the orders set aside, claiming they were ex parte orders made without her knowledge or consent. The court examined the legal issues surrounding the application, including the circumstances of Ms Saha's absence from the proceedings and whether the court had the power to set aside the orders under rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The court found that while the orders were indeed made in Ms Saha's absence, her reasons for not appearing were not reasonable. Furthermore, Ms Saha failed to demonstrate that any different orders would have been made if she had been present at the hearing, or that there would be no prejudice to the respondents if the orders were set aside. As a result, the court dismissed the application to set aside the orders made on 13 February 2023.

The court also dismissed Ms Saha's request to transfer the remaining proceedings to the Family Court in Sydney. The court found no basis for suggesting that a judge in Sydney could hear the proceedings earlier than the allocated trial date in April 2023. Additionally, the court found no basis for making costs orders against the respondents.

In conclusion, the court dismissed the application filed on 14 February 2023, which sought to set aside the orders made on 13 February 2023 and transfer the remaining proceedings to the Family Court in Sydney. The court found that Ms Saha failed to establish reasonable grounds for her absence during the original proceedings and did not demonstrate that different orders would have been made if she had been present or that there would be no prejudice to the respondents if the orders were set aside.

Orders