Pencious and Searle (No 2) - [2015] FamCAFC 112

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (NO. 2)

[2015] FamCAFC 112

FAMILY LAW – APPEAL – ORAL APPLICATION TO ADJOURN HEARING – Where the applicant seeks to adjourn the hearing of the applications listed for hearing today – Where the application is opposed – Where the applicant submits that there is evidence that needs to be before the court in order for him to pursue his applications – Where the applicant has had ample time to properly prepare his case – Where the applicant is an experienced litigant who well knows the process of the court – Where the application smacks of an attempt to delay finalisation of these proceedings – Where the proceedings have been before the Court for over six years – Where it is imperative that the applications listed be dealt with – Where there is nothing put by the applicant that persuades the court that the further evidence is necessary – Application dismissed.

FAMILY LAW – APPEAL – ORAL APPLICATION TO RESTRAIN COUNSEL FOR FIRST RESPONDENT FROM APPEARING – Where there is no evidence before the court which would demonstrate the necessity for such an order – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT:

Mr Pencious

FIRST RESPONDENT:

Ms Searle (formerly Pencious)

SECOND RESPONDENTS:

Mr and Mrs Searle

FILE NUMBER:

MLC

11069

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

6 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

6 May 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 February 2012

LOWER COURT MNC:

[2012] FamCA 74

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr Wood with Mr Guthrie

SOLICITOR FOR THE RESPONDENT:

Tasiopoulos Lambros & Co

COUNSEL FOR THE SECOND RESPONDENTS

Mr Halperin

SOLICITOR FOR THE SECOND RESPONDENTS

Halperin & Co Pty Ltd

Orders

The applications in an appeal filed by the applicant husband on 27 April 2015 in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 seeking that the Honourable Justice Strickland be disqualified from further hearing this matter be dismissed.
The oral application made by the applicant husband seeking to adjourn the hearing of the balance of the applications in an appeal filed in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 be dismissed.
The oral application made by the applicant husband seeking to restrain Mr Wood, counsel for the first respondent, from further acting in this matter, be dismissed.
The affidavit filed by the applicant husband on 10 February 2015 in appeal number SOA 5 of 2015 be uplifted and returned to him this day.
Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 8 January 2015 as amended on 4 May 2015 in appeal number SOA 3 of 2015.
Judgment be reserved in relation to the application in an appeal filed by the applicant husband…

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.

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Details

Case: [2015] FamCAFC 112
Decision Date: 6 May 2015

CaseChat Overview and Summary

The parties involved in the case of Pencious and Searle (No 2) were the husband, who was the applicant, and the wife, who was the first respondent. The dispute in this case was related to various applications listed for hearing in an appeal filed by the husband. The Federal Circuit Court of Australia was the court that presided over this case. The husband had filed multiple appeals, including SOA 24 of 2012, SOA 3 of 2015, and SOA 5 of 2015, seeking various orders against the wife. However, the court was required to decide on several legal issues raised by the husband's applications. These issues included a request for the adjournment of the hearing of the applications, a request to disqualify the Honourable Justice Strickland from further hearing the matter, and a request to restrain Mr Wood, counsel for the first respondent, from further acting in the case.

The court carefully considered the arguments presented by the husband and the wife. The husband argued that there was evidence that needed to be before the court in order for him to pursue his applications. However, the court found that the husband had had ample time to properly prepare his case and that the application appeared to be an attempt to delay the finalisation of these proceedings. The court also noted that the proceedings had been before the court for over six years, and it was imperative that the applications listed be dealt with. The court found that there was nothing put by the husband that persuaded the court that the further evidence was necessary. The court further found that there was no evidence before the court which would demonstrate the necessity for the order to disqualify the Honourable Justice Strickland or to restrain Mr Wood from further acting in the case.

Based on the court's reasoning, it dismissed the husband's applications to disqualify the Honourable Justice Strickland, to adjourn the hearing of the applications, and to restrain Mr Wood from further acting in the case. The court also uplifted and returned to the husband an affidavit filed on 10 February 2015 in appeal number SOA 5 of 2015. Judgment was reserved in relation to the other applications filed by the husband and the wife. The court's decision was final and binding on the parties involved in the case.

Orders

Orders of the court

The applications in an appeal filed by the applicant husband on 27 April 2015 in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 seeking that the Honourable Justice Strickland be disqualified from further hearing this matter be dismissed.

The oral application made by the applicant husband seeking to adjourn the hearing of the balance of the applications in an appeal filed in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 be dismissed.

The oral application made by the applicant husband seeking to restrain Mr Wood, counsel for the first respondent, from further acting in this matter, be dismissed.

The affidavit filed by the applicant husband on 10 February 2015 in appeal number SOA 5 of 2015 be uplifted and returned to him this day.

Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 8 January 2015 as amended on 4 May 2015 in appeal number SOA 3 of 2015.

Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 27 January 2015 in appeal number SOA 5 of 2015.

Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 16 February 2015 seeking to review the decision of the Appeal Registrar made on 4 February 2015 in appeal number SOA 24 of 2012.

Judgment be reserved in relation to the application in an appeal filed by the first respondent wife seeking costs in appeal number SOA 24 of 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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