Manesh & Manesh (No 2) - [2021] FedCFamC1F 292

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manesh & Manesh (No 2) [2021] FedCFamC1F 292

File number(s): MLC 8955 of 2019

Judgment of: JOHNS J

Date of judgment: 22 November 2021

Catchwords: FAMILY LAW – PROCEDURE – adjournment application – fourth day of hearing – delays caused by husband’s conduct – husband seeking adjournment due to alleged inability to retain counsel – husband had assistance of counsel and elected to proceed without him – impact of adjournment on other matters – need for finality – application refused

Division: Division 1 First Instance

Number of paragraphs: 15

Date of hearing: 22 November 2021

Place: Melbourne

The Applicant: In Person

Solicitor for the Applicant: Elisa Rothschild Lawyer

Counsel for the Respondent: Mr Puckey QC

Solicitor for the Respondent: Freeman Family Law

Counsel for the Independent Children's Lawyer: Mr Ham

Solicitor for the Independent Children's Lawyer: Macgregor Solicitors
ORDERS

MLC 8955 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MANESH
Applicant

AND:
MS MANESH
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

22 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Husband’s oral application for adjournment 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 the pseudonym Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

This is the second oral application for an adjournment made on behalf of the respondent husband, this application made on the fourth day of the final hearing. For the reasons that follow, the husband’s application for adjournment is refused.
The husband’s first application for adjournment was made on the third day of hearing, being 18 November 2021. That day I made orders adjourning the final hearing to this day. I refer to my ex tempore reasons for judgment regarding the background to the matter.
Today the husband is represented by a newly appointed solicitor, Mr Jones whose practice is based in Sydney. Mr Jones was briefed by the husband on the afternoon of Friday, 19 November 2021. He appears in person today and seeks an adjournment of the proceedings on the basis that he has been unable to retain Counsel to represent the husband for the remainder of the final hearing.
The husband’s application for an adjournment is opposed by the wife…

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 Manesh & Manesh (No 2)

Details

AGLC: Manesh & Manesh (No 2) [2021] FedCFamC1F 292
Case: [2021] FedCFamC1F 292
Decision Date

CaseChat Overview and Summary

This case involved an application for an adjournment made by the husband in the midst of the final hearing of family law proceedings. The application was opposed by the wife and the Independent Children's Lawyer. The court had to determine whether the husband's application for an adjournment should be granted, considering the reasons provided and the impact of an adjournment on all parties involved. The husband's application for an adjournment was based on his alleged inability to retain counsel for the remainder of the final hearing. However, the court found that the husband had ample opportunity to engage with lawyers, and he had been represented by lawyers during the hearing. The court was also of the view that the proposition that there was no barrister available to accept a brief to appear on behalf of the husband did not accord with the court's knowledge and experience of practice in the State of Victoria.

The husband further submitted that he required an adjournment in order to adduce additional evidence. The court considered the evidence sought to be adduced by the husband and found that it was available to the court. The court was also of the view that the determination of an adjournment application was a delicate balancing act, and the court had a wide discretion to grant adjournments, but it was not an unfettered discretion. The court took into account the impact of an adjournment on other cases and the parties' daughter, X, the subject child of these proceedings. The court was of the view that an adjournment would have a significant, detrimental impact upon X, who had been the subject of this conflict for some years now, and she needed finality so that she could move forward with her life. The court was also of the view that the adverse impact of the proceedings upon the wife was significant and ongoing and was unlikely to abate until such time as these proceedings were concluded. For these reasons, the court was satisfied that the application for an adjournment ought be refused.

The court dismissed the husband's application for an adjournment. The court found that the husband had ample opportunity to engage with lawyers and that he had been represented by lawyers during the hearing. The court also found that the additional evidence sought to be adduced by the husband was available to the court and that the determination of an adjournment application was a delicate balancing act. The court took into account the impact of an adjournment on other cases and the parties' daughter, X, the subject child of these proceedings. The court was of the view that an adjournment would have a significant, detrimental impact upon X, who had been the subject of this conflict for some years now, and she needed finality so that she could move forward with her life. The court was also of the view that the adverse impact of the proceedings upon the wife was significant and ongoing and was unlikely to abate until such time as these proceedings were concluded. For these reasons, the court was satisfied that the application for an adjournment ought be refused.

Orders