Millman & Millman (No 2) - [2021] FedCFamC1F 93

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millman & Millman (No 2) [2021] FedCFamC1F 93

File number(s): ADC 30 of 2020

Judgment of: BERMAN J

Date of judgment: 1 October 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant seeks that the trial date be vacated – Where the respondents oppose the application – Where the wife’s senior counsel is no longer available on the trial dates – Where the applicant has been unable to brief alternate senior counsel – Where the wife still retains experienced junior counsel – Where the matter involves not only property aspects but serious parenting issues – Where the applicant would not be prejudiced by not being able to instruct senior counsel – Where the proper administration of justice requires that the litigation be brought to an end as soon as is reasonable – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) s 106B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.25

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

NA & TIU [2017] FamCAFC 264

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 41

Date of hearing: 24 September 2021

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd

Counsel for the First Respondent: Ms Nelson QC

Solicitor for the First Respondent: Angela Ferdinandy

Counsel for the Second Respondent: Mr Abbott QC

Solicitor for the Second Respondent: Douglas Hoskins Legal
ORDERS

ADC 30 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MILLMAN

Applicant

AND:
MR MILLMAN

First Respondent

MR FAZIL

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

1 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed 27 August 2021 to vacate the trial listed to commence on 1 November 2021 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 pseudonyms Millman & Millman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

By Further Amended Initiating Application filed 25 May 2021, Ms Millman (“the applicant”) seeks orders for property settlement and parenting orders. Mr Millman (“the first respondent”) opposes the orders sought, relying upon his…

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 Millman & Millman (No 2)

Details

AGLC: Millman & Millman (No 2) [2021] FedCFamC1F 93
Case: [2021] FedCFamC1F 93
Decision Date

CaseChat Overview and Summary

Millman & Millman (No 2) involves a dispute between the parties concerning parenting arrangements for their children. The matter was before the Family Court of Australia. The primary issue for the Court was whether the trial date should be vacated and the proceedings relisted to a later date in 2022, allowing the applicant to instruct senior counsel. The Court was required to balance the applicant's need for experienced legal representation against the need for the litigation to proceed without further delay.

The Court found that the applicant had experienced counsel and the option of junior counsel assistance, which was sufficient to prepare and conduct the proceedings. The Court also considered that there were serious parenting issues that needed to be addressed promptly. The Court concluded that the applicant would not be prejudiced by not being able to instruct senior counsel, and that the proper administration of justice required the litigation to be brought to an end as soon as was reasonable.

The Court dismissed the application to vacate the trial date and relist the proceedings for a later date in 2022. The Court's decision was based on the finding that there was no overt prejudice to the applicant, and that the proceedings should proceed without further delay. The Court made an order that the trial date would proceed as scheduled.

The final orders of the Court were that the application to vacate the trial date and relist the proceedings for a later date in 2022 was dismissed. The Court ordered that the trial date would proceed as scheduled, and that the applicant had the option of seeking further assistance from junior counsel in the preparation and conduct of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application provides no assistance in that regard. If orders were made in terms of the application, the proceedings would likely be adjourned to an uncertain future in 2022.CONCLUSION I am not persuaded that the applicant would be prejudiced by not being able to instruct senior counsel. The applicant has the advantage of experienced counsel and the option of assistance of other junior counsel in the preparation and conduct of the proceedings. In circumstances where I do not consider that there is any overt prejudice to the applicant, the proper administration of justice requires that the litigation be brought to an end as soon as is reasonable, particularly given that there are serious parenting issues to be heard and determined. The application to vacate the trial date and relist the proceedings to a mention date in 2022 is dismissed. I make the order as appears at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	ADC 30 of 2020
Judgment of:	BERMAN J
Date of judgment:	1 October 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant seeks that the trial date be vacated – Where the respondents oppose the application – Where the wife’s senior counsel is no longer available on the trial dates – Where the applicant has been unable to brief alternate senior counsel – Where the wife still retains experienced junior counsel – Where the matter involves not only property aspects but serious parenting issues – Where the applicant would not be prejudiced by not being able to instruct senior counsel – Where the proper administration of justice requires that the litigation be brought to an end as soon as is reasonable – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 106B Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.25
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 NA & TIU [2017] FamCAFC 264 Rice & Asplund (1979) FLC 90-725
Division:	Division 1 First Instance
Number of paragraphs:	41
Date of hearing:	24 September 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Jacqui Ion Lawyers Pty Ltd
Counsel for the First Respondent:	Ms Nelson QC
Solicitor for the First Respondent:	Angela Ferdinandy
Counsel for the Second Respondent:	Mr Abbott QC
Solicitor for the Second Respondent:	Douglas Hoskins Legal

ADC 30 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MILLMAN Applicant
AND:	MR MILLMAN First Respondent MR FAZIL Second Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	1 OCTOBER 2021