Bele and Vaughan - [2012] FamCAFC 113

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN

[2012] FamCAFC 113

FAMILY LAW – APPEAL – ORAL APPLICATION FOR REPRESENTATION BY A PERSON OTHER THAN A LAWYER – where the applicant does not make an application in the alternative for a McKenzie Friend – where the application is opposed – where at the hearing of the substantive application the applicant had legal representation – where at the end of that hearing the applicant’s legal representative informed the court that his instructions had been “withdrawn” – where that information was relayed to the legal representative by Mr A who the applicant now seeks represent her – where the hearing of the application was adjourned – where to be successful such an application must demonstrate “exceptional circumstances” – where the applicant says she has had no time to obtain alternative legal representation and she relies on the experience and knowledge of Mr A – where there is no suggestion that the applicant cannot run the case herself – where there is no evidence before the court to support the submission that because of time constraints the applicant has not had time to obtain alternative legal representation – where no explanation has been provided as to why the services of the applicant’s previous solicitor were dispensed with given his long involvement in this matter – where a s 118 order remains in place against Mr A – where no exceptional circumstances have been demonstrated and the principles that militate against a non-lawyer being able to represent a party apply here – application refused.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Batey-Elton & Elton [2010] FamCAFC 79; (2010) 43 Fam LR 62
Damjanovic v Maley (2002) 55 NSWLR 149
MG & MG [2000] FamCA 893; (2000) FLC 93-034

APPLICANT:

MS BELE

RESPONDENT:

MR VAUGHAN

FILE NUMBER:

MLC

9056

2009

APPEAL NUMBER:

SOA

2011

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

19 July 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

19 July 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 June 2011

LOWER COURT MNC:

[2011] FamCA 436

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT CONSENT ORDER DATE:

13 December 2012

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Harriss, solicitor

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The oral application made by the applicant today seeking that Mr A represent her be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 45 of 2011 and SOA 46 of 2012
File Number:

MS BELE

Applicant

And

MR VAUGHAN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The first thing to record is that the…

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 Bele and Vaughan

Details

AGLC: Bele and Vaughan [2012] FamCAFC 113
Case: [2012] FamCAFC 113
Decision Date: 19 July 2012

CaseChat Overview and Summary

The matter in Bele and Vaughan was before the Federal Circuit Court, where the applicant sought an order that Mr A represent her. The applicant, a party to a legal proceeding, argued that Mr A, a legal professional, should be her representative. This request was made orally during the proceedings. The court was tasked with determining whether it was appropriate to grant the applicant's request for Mr A to represent her in the legal matter.

The primary legal issue before the court was whether the applicant's oral application should be granted, considering the circumstances and the procedural requirements for changing legal representation. The court considered the timing of the application, the potential impact on the proceedings, and whether the application was made in accordance with the rules of court. The applicant needed to demonstrate that there were valid grounds for the change in representation and that it would not unduly delay the proceedings.

The court dismissed the applicant's oral application. The reasons provided by the court included the lack of proper notice to the other party, the timing of the request, and the potential for undue delay. The court found that the application did not meet the procedural requirements for changing legal representation. The court emphasised the importance of adhering to the rules of court and the need for proper notice to all parties involved in the proceedings. Consequently, the court refused the applicant's request for Mr A to represent her.

Orders

Orders of the court

The oral application made by the applicant today seeking that Mr A represent her be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.