Rimac & Rimac (No. 3) - [2021] FamCA 263

FAMILY COURT OF AUSTRALIA
Rimac & Rimac (No. 3) [2021] FamCA 263

File number(s): SYC 1540 of 2014

Judgment of: MCCLELLAND DCJ

Date of judgment: 3 May 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where an Application for an adjournment is made on the first day of hearing, following cross examination commencing – Where any adjournment would be a prejudice to the wife – Application dismissed.

Number of paragraphs: 13

Date of hearing: 3 May 2021

Place: Sydney

Counsel for the Applicant: Mr Livingstone

Solicitor for the Applicant: Taylor

Counsel for the Respondent: Mr C Rimac, with leave of the Court

SYC 1540 of 2014

BETWEEN:
MS RIMAC

Applicant

AND:
MR RIMAC

Respondent

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimac & Rimac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McClelland DCJ:

This decision concerns an Application by Mr Rimac (“the husband”) for an adjournment of the final hearing of the Application for Final Orders in respect of property distribution filed by Ms Rimac (“the wife”). This Application is made in the following circumstances:
(a)The matter is currently before the Court for final hearing;
(b)As will be detailed below, the matter has been adjourned on numerous occasions, to the prejudice of the wife, to facilitate the husband recovering form health issues and to facilitate the husband obtaining legal representation or, at the very least, participating in these proceedings by filing relevant material that he wishes to rely upon; and
(c)Mr C Rimac, who is representing his brother, the husband in these proceedings, is in the middle of cross examination of the wife.
In this matter, shortly after the morning tea adjournment, I specifically requested the husband to consider an offer of settlement made by the wife which was in the form of the orders proposed by the wife. Those proposed orders were served upon the husband in September of last year, 2020. For clarity, an additional copy was provided to the husband at the commencement of these proceedings. The orders sought by the wife were declared to be also in the nature of a formal offer of settlement.
At 11.30 am this morning, I adjourned the proceedings to enable the husband to have some time to consider that formal offer of settlement. The Court has resumed at 2.00 pm, at which time the husband has made an Application to adjourn the proceedings for a period of 12 months. For the following reasons, I reject that Application.
On 2 March 2020, the matter came before me in a call over and on that occasion the husband did not…

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 Rimac & Rimac (No. 3)

Details

AGLC: Rimac & Rimac (No. 3) [2021] FamCA 263
Case: [2021] FamCA 263
Decision Date: 3 May 2021

CaseChat Overview and Summary

The parties in this matter were Mr and Mrs Rimac, with the application concerning their family law dispute. The application for an adjournment was made on the first day of the hearing, after cross-examination of a party had commenced. The court was the District Court.

The central legal issue before the court was whether to grant an adjournment of the hearing at a late stage, after proceedings had already commenced and cross-examination was underway. The court was required to consider the prejudice that any such adjournment would cause to the wife.

McClelland DCJ dismissed the application for adjournment. His Honour reasoned that granting an adjournment at that juncture would cause significant prejudice to the wife, particularly given the stage the proceedings had reached. The court applied the principle that adjournments are a discretionary matter, to be exercised having regard to the overall justice of the case and the potential prejudice to the parties.

The application for adjournment was dismissed.

Orders