Cavelli & Selden - [2021] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA
Cavelli & Selden [2021] FCCA 605

File number(s): MLC 4923 of 2019

Judgment of: JUDGE RIETHMULLER

Date of judgment: 11 March 2021

Catchwords: FAMILY LAW – Parenting – s 102NA engaged, prohibiting parties from cross-examining each other personally – party’s lawyers ceasing to act shortly before final hearing – adjournment application – application refused.

Legislation:
Family Law Act 1978 (Cth) s 102NA

Explanatory Memorandum, Family Law Amendment(Family Violence and Cross-Examination of Parties) Bill 2018 (Cth)

Cases cited:
Garrod v Davenort [2018] FamCA 825

Queensland v J L Holdings Pty Ltd [1997] HCA 1)

Number of paragraphs: 24

Date of last submissions: 11 March 2021

Date of hearing: 11 March 2021

Place: Melbourne

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Heggie

Solicitor for the Respondent: Hargreaves Family Lawyers
ORDERS

MLC 4923 of 2019

BETWEEN:
MR CAVELLI

Applicant

AND:
MS SELDEN

Respondent

ORDER MADE BY:

JUDGE RIETHMULLER

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS THAT:
1.The Father’s oral application to adjourn the final hearing be refused.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Cavelli & Selden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
BACKGROUND

This is an application for an adjournment of a parenting trial that has been pending in the Court since 2019. The parties in this matter commenced their relationship in 2015 and separated in 2017. It was a brief relationship. The parties were unable to work out parenting arrangements between themselves. Attempts at Family Dispute Resolution were unsuccessful. The matter also came to the attention of police, who issued a Family Violence Safety Notice to protect the mother and child, X in July 2018, which resulted in a Final Family Violence Intervention Order being made on 30 August 2018, effective for a period of five years.
In November 2018, the father was convicted for persistently contravening the Family Violence Intervention Order and was sentenced to a Community Corrections Order, community work and other orders. Since then, further breach proceedings have been brought by the police. At present, breach proceedings are pending in the State Courts.
The matter has been pending in this Court on parenting issues since 2019, when the father filed his Initiating Application in May of that year. Both parties have been represented throughout the proceedings, until recently, when the father’s lawyers, ‘Resolve Conflict Lawyers’, withdrew on 1 March 2021. Neither party has been in receipt of Legal Aid assistance. The matter has had a number of Court events since it commenced. Orders were made by Judge Blake on 16 July 2019, 25 November 2019, 17 December 2019, and 14 April 2020, and then by myself on 9 March 2021.
APPLICATION FOR ADJOURNMENT
The father attends…

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 Cavelli & Selden

Details

AGLC: Cavelli & Selden [2021] FCCA 605
Case: [2021] FCCA 605
Decision Date: 11 March 2021

CaseChat Overview and Summary

In the matter of *Cavelli & Selden*, heard by Riethmuller J, the applicant father sought an adjournment of the final hearing, which was opposed by the respondent mother.

The central legal issue before the court was whether the father had demonstrated sufficient circumstances to warrant an adjournment of the final hearing, particularly in light of the potential for such an adjournment to disadvantage the mother. The court also considered the application of section 102NA of the *Family Law Act 1975* (Cth) in this context.

Riethmuller J reasoned that granting the father's application for an adjournment would permit him to leverage provisions designed for the mother's protection to her detriment, both financially and emotionally, by prolonging the litigation. The court determined that it was inappropriate for the operation of section 102NA to result in such a disadvantage to the party it was intended to safeguard. Consequently, the court was not persuaded that the father had established sufficient grounds to justify adjourning the trial.

The court ordered that the father's oral application to adjourn the final hearing be refused.

Orders

Orders of the court

MLC 4923 of 2019

BETWEEN:

MR CAVELLI

Applicant

AND:

MS SELDEN

Respondent

ORDER MADE BY:

JUDGE RIETHMULLER

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS THAT:

1. The Father’s oral application to adjourn the final hearing be refused.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

To allow the father’s application to adjourn the proceedings would allow him to use the very provisions that were enacted for the mother’s protection in the processes of the Court to disadvantage the mother, in this case both financially and emotional, as the litigation will be delayed. It is not appropriate to allow the operation of s 102NA to result in such a disadvantage to the very person it is intended to protect. CONCLUSION When considering the matter as a whole, I am not persuaded that the father has shown sufficient circumstances to justify adjourning the trial of this matter. I therefore refuse the father’s adjournment application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 4923 of 2019
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	11 March 2021
Catchwords:	FAMILY LAW – Parenting – s 102NA engaged, prohibiting parties from cross-examining each other personally – party’s lawyers ceasing to act shortly before final hearing – adjournment application – application refused.
Legislation:	Family Law Act 1978 (Cth) s 102NA Explanatory Memorandum, Family Law Amendment(Family Violence and Cross-Examination of Parties) Bill 2018 (Cth)
Cases cited:	Garrod v Davenort [2018] FamCA 825 Queensland v J L Holdings Pty Ltd [1997] HCA 1)
Number of paragraphs:	24
Date of last submissions:	11 March 2021
Date of hearing:	11 March 2021
Place:	Melbourne
Counsel for the Applicant:	In person
Counsel for the Respondent:	Ms Heggie
Solicitor for the Respondent:	Hargreaves Family Lawyers

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	11 MARCH 2021