Manesh & Manesh

[2021] FamCAFC 46

FAMILY COURT OF AUSTRALIA

Manesh & Manesh [2021] FamCAFC 46

Appeal from:	Manesh & Manesh [2020] FamCA 792
Appeal number(s):	SOA 86 of 2020
File number(s):	MLC 8955 of 2019
Judgment of:	STRICKLAND J
Date of judgment:	12 April 2021
Catchwords:	FAMILY LAW – APPEAL – EXPEDITE – Where the applicant seeks that the hearing of his Notice of Appeal be expedited – Where the appeal should be expedited but not to the extent sought – Appeal expedited to be heard in the April 2021 sittings of the Full Court.
Legislation:	Family Law Rules 2004 (Cth) r 10A(2)(d)
Division:	Appeal Division
Number of paragraphs:	13
Date of hearing:	17 November 2020
Place:	Melbourne by video-link
The Applicant:	In Person
Counsel for the Respondent:	Mr Goddard
Solicitor for the Respondent:	Freeman Family Law
Counsel for the Independent Children's Lawyer:	Mr Ambrose
Solicitor for the Independent Children's Lawyer:	Macgregor Solicitors

ORDERS

SOA 86 of 2020
MLC 8955 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR MANESH

Applicant

AND:

MS MANESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	17 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The hearing of the Notice of Appeal filed by the applicant husband on 7 October 2020 be expedited and listed for hearing in the sittings of the Full Court commencing on Monday [26] April 2021.

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 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 Manesh & Manesh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRICKLAND J

INTRODUCTION

1. On 17 November 2020, this Court heard an Application in an Appeal filed by Mr Manesh (“the husband”) on 16 October 2020 seeking, in effect, that the hearing of the Notice of Appeal filed by him on 7 October 2020 in appeal no. SOA 86 of 2020, appealing against parenting orders made by a Judge of the Family Court of Australia, be expedited.

2. An order was made on 17 November 2020 expediting the hearing of the Notice of Appeal, and listing the same in the sittings of the Full Court commencing on 26 April 2021.

3. As a result of time pressures on the day, this Court indicated that the reasons for judgment would follow subsequently, and would probably be delivered at or about the same time as the reasons for judgment in relation to appeal no. SOA 62 of 2020, which was the other appeal heard on 17 November 2020.

4. These are those reasons for judgment.

   BACKGROUND

5. On 20 December 2019, a Judge of the Federal Circuit Court of Australia dismissed the husband’s Application in a Case seeking that he spend supervised time with one of the two children of the parties over the 2019/2020 Christmas school holidays, and that the child spend time with her grandparents, with or without supervision.

6. The husband appealed against those orders. However, during the pendency of that appeal, the husband filed another application seeking an order that the child spend time with him. That application was dismissed by a Senior Registrar on 7 September 2020, but the husband then brought an application seeking a review of that order, and seeking other parenting orders. Curiously, the proceedings were then transferred to the Family Court of Australia, and the matter came before the primary Judge.

7. To enable his application to proceed, the husband filed an Amended Notice of Appeal against the orders made on 25 June 2020.

8. His Honour then heard the application and made the orders the subject of appeal no. SOA 86 of 2020.

9. The basis of the application for expedition was the alleged urgency of re-establishing the relationship between the child and the husband, and providing for the child to spend time with him, given that there had been no contact for 16-17 months. Further, the husband submitted that he needed to be able to spend time with the child before the final hearing took place to enable another family report to be prepared.

10. However, the primary Judge’s decision was that it was not in the best interests of the child to spend any time with the husband pending the final hearing, and thus for the husband to achieve the outcome he sought, the appeal would have to be successful, and either there would then be a successful re-exercise of the discretion, or upon remittal, a successful rehearing of the application. That would all take time, and meanwhile of course, the final hearing of the parenting application would be proceeding along the case management pathway, but once heard, that final hearing would determine the issue in any event. At the time of the hearing before this Court, it was unknown when the final hearing would take place.

11. In these circumstances it was clear that if possible the appeal should be listed earlier rather than later, and in that regard I indicated to the parties that I was prepared and able to expedite the hearing of the appeal in order that it could be heard in the April 2021 sittings of the Full Court.

12. Both Ms Manesh (“the wife”) and the Independent Children’s Lawyer (“the ICL”) agreed with that proposal, but the husband did not. He sought that the appeal be listed in the February 2021 sittings of the Full Court. However, I explained to the husband that the list for those sittings was full, and to list the appeal then would require the removal of an appeal already listed.

13. In the end result, the husband was unable to persuade me, to use the wording from r 10A(2)(d) of the Family Law Rules 2004 (Cth), that there was a relevant circumstance in which the appeal should be given priority to the possible detriment of other appeals. Indeed, neither the wife’s counsel, nor, importantly, the counsel for the ICL, were of the view that the listing of the appeal was so urgent that it should displace another appeal from the February 2021 list. Thus, I made the order expediting the hearing of the appeal to the April 2021 sittings of the Full Court.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland.

Associate:

Dated:       12 April 2021