PANCIOUS & SEARLE

[2014] FamCAFC 249

FAMILY COURT OF AUSTRALIA

PANCIOUS & SEARLE [2014] FamCAFC 249

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant seeks to adjourn the proceedings – Where there has been ample time for the applicant to determine whether or not there was sufficient evidence before the court – Where adjourning the matter will inevitably visit further expense upon the respondent and create further uncertainty for the respondent insofar as when the matter may be finalised – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Pancious

RESPONDENT: Ms Searle (formerly Pancious)

FILE NUMBER: MLC 11069 of 2008

APPEAL NUMBER: SOA 24 of 2012

DATE DELIVERED: 7 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 7 May 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 28 February 2012

LOWER COURT MNC: [2012] FamCA 74

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rattray

SOLICITOR FOR THE APPLICANT: Altona Legal

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Adrian Abrahams Family Law

Order

1. The oral application made on behalf of the applicant husband seeking an adjournment of the hearing be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pancious & Searle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number:  SOA 24 of 2012
File Number:  MLC 11069 of 2008

Mr Pancious

Applicant

And

Ms Searle (formerly Pancious)

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. I now have an oral application in this matter made on behalf of the applicant husband to adjourn this hearing to enable either an amended affidavit to be filed, or a further fresh affidavit to be filed.

2. The context of that application is that, as is apparent, and as has been pointed out by me to the husband’s counsel, there is no evidence contained in the affidavit filed in support of the application explaining why no application for reinstatement was made before March 2014, given that the document which is primarily relied upon as a basis for the appeal being reinstated was made available to the husband and/or his legal advisors in July 2012.

3. The extent of what is put in the affidavit filed by the applicant on 21 March 2014 in support of the application in this regard is comprised in paragraph 19 which reads as follows:

   I(sic) the circumstances that have now arisen and as a result of the information obtained during the costs assessment process as referred to in paragraphs 5, 6 & 7 hereof, I seek the leave of this Honourable Court to reinstate by(sic) Appeal tahen(sic) to have been abandoned.

4. As I understand it, what is sought to be put in a further affidavit is what the husband says arose, or what information was obtained during the costs assessment process, which he says has led him to make this application in March 2014.

5. That application is opposed.

6. It must be remembered that the application for hearing today is an application seeking reinstatement of an appeal that has been deemed abandoned.  The husband is seeking an indulgence of the court in that process.  The application was filed on 21 March 2014, together with the supporting affidavit.  The hearing has been listed today namely, 7 May 2014.  There has been ample time in that period for reflection and consideration of whether there is sufficient evidence before the court in support of the reinstatement application, and I would have thought also that if there were any deficiencies they would have come to light in the preparation of the matter for today.

7. To adjourn the matter as sought will inevitably visit further costs and expense upon the respondent.  The respondent has come here today with senior counsel briefed ready to deal with this application.  Several affidavits have been filed on her behalf in opposition to the application.  To further delay the hearing by adjourning the matter will obviously create further uncertainty for the respondent in so far as when this matter may be finalised, and in my view the need for an explanation of delay could not have been a matter of surprise to the husband or his legal advisors.  It is usually one of the most significant issues which this court needs to address in determining whether the discretion will be exercised to reinstate an appeal that has been abandoned.

8. For those reasons I propose to dismiss the application for an adjournment.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on

7 May 2014.

Associate:     FM

Date:              12 May 2015