Maldonado & Maldonado - [2023] FedCFamC1F 1020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Maldonado & Maldonado [2023] FedCFamC1F 1020

File number(s): PAC 1079 of 2021

Judgment of: CURRAN J

Date of judgment: 22 November 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where father made oral application to adjourn the final hearing– Where father’s s 102NA grant approved but yet to be allocated – Where father’s application is opposed by the mother but not opposed by the independent children’s lawyer – Where proceedings have a long history – Where father has spent no time with children in some months – Where interim orders for supervised time made by consent – Where mother alleges risk of sexual abuse – Determined that the matter be adjourned in the interests of justice –Application granted and new hearing dates allocated

Legislation:
Family Law Act 1975 (Cth) s 102NA

Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Cases cited: Mertens & Mertens [2016] FamCAFC 136

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 22 November 2023

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Mr Lovemore of Lovemore Lawyers

Counsel for the Independent Children's Lawyer: Mr Guterres

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

PAC 1079 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MALDONADO

Applicant

AND:
MS MALDONADO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 NOVEMBER 2023

BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS:
1.That within seven days of the date of these Orders each party will do all reasonable things to contact C Contact Service, D Family Services and E Family Services to complete intake procedures at the first opportunity offered by those services.
2.That the father shall spend time with the children at the earliest opportunity offered by either of the services and the time shall continue with the same service for two hours each fortnight at a time and place nominated by the service.
3.Neither party shall cancel any visit or the service except in the case of an emergency and in the event that the children or one of the parties are unwell that a medical certificate be provided to the other party and the Independent Children’s Lawyer within seven days.
4.That the mother make all reasonable enquiries to obtain the date of birth of Mr B and provide this information to the Independent Children’s Lawyer at the earliest opportunity and through her legal representative.

THE COURT ORDERS:
5.That the matter be adjourned for a Final Hearing for 3 days on 25 September 2024.
6.That each of the parties are to file and serve one consolidated trial affidavit upon which they intend to rely by no later than close of business on 1 September 2024.
7.No affidavit material filed after that date may be relied upon without leave of the court.
8.Leave is granted to the Independent Children’s Lawyer to issue such subpoena…

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 Maldonado & Maldonado

Details

AGLC: Maldonado & Maldonado [2023] FedCFamC1F 1020
Case: [2023] FedCFamC1F 1020
Decision Date: 22 November 2023

CaseChat Overview and Summary

The applicant father, Mr Maldonado, made an oral application to adjourn the final hearing in the matter. The hearing was set to address issues of time spent with the children and allegations of sexual abuse made by the mother. The mother opposed the application, while the independent children's lawyer did not oppose the adjournment. The court was required to determine whether an adjournment was in the interests of justice, considering the extensive history of the proceedings, the father's recent lack of contact with the children, and the allegations of sexual abuse.

In considering the application, the court examined the history of the proceedings and the recent circumstances of the father's lack of contact with the children. Despite the mother's opposition, the court found that an adjournment would allow for further supervised contact and investigations into the allegations of abuse. The court concluded that an adjournment was appropriate to ensure that the children's welfare was prioritised and that all allegations were thoroughly investigated.

Accordingly, the court granted the application and adjourned the final hearing for three days on 25 September 2024. The court ordered that both parties file and serve one consolidated trial affidavit by no later than 1 September 2024. The court also noted that failure to comply with the directions for filing may result in the hearing proceeding on an undefended basis. The court granted leave to the independent children's lawyer to issue subpoenas necessary for the hearing, which were to be returned and inspected prior to the first day of the hearing. The parties indicated a preference for the final hearing to be heard at the Parramatta registry.

Orders

Orders of the court

PAC 1079 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MALDONADO

Applicant

AND:

MS MALDONADO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 NOVEMBER 2023

BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS:

1. That within seven days of the date of these Orders each party will do all reasonable things to contact C Contact Service, D Family Services and E Family Services to complete intake procedures at the first opportunity offered by those services.

2. That the father shall spend time with the children at the earliest opportunity offered by either of the services and the time shall continue with the same service for two hours each fortnight at a time and place nominated by the service.

3. Neither party shall cancel any visit or the service except in the case of an emergency and in the event that the children or one of the parties are unwell that a medical certificate be provided to the other party and the Independent Children’s Lawyer within seven days.

4. That the mother make all reasonable enquiries to obtain the date of birth of Mr B and provide this information to the Independent Children’s Lawyer at the earliest opportunity and through her legal representative.

THE COURT ORDERS:

5. That the matter be adjourned for a Final Hearing for 3 days on 25 September 2024.

6. That each of the parties are to file and serve one consolidated trial affidavit upon which they intend to rely by no later than close of business on 1 September 2024.

7. No affidavit material filed after that date may be relied upon without leave of the court.

8. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as is necessary. Such subpoena are to be made returnable and inspected prior to the first day of the hearing.

THE COURT NOTES THAT:

A. Failure to comply with the directions for filing may result in the hearing proceeding on an undefended basis.

B. The parties indicated a preference for the final hearing to be heard at the Parramatta registry.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 1079 of 2021
Judgment of:	CURRAN J
Date of judgment:	22 November 2023
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Where father made oral application to adjourn the final hearing– Where father’s s 102NA grant approved but yet to be allocated – Where father’s application is opposed by the mother but not opposed by the independent children’s lawyer – Where proceedings have a long history – Where father has spent no time with children in some months – Where interim orders for supervised time made by consent – Where mother alleges risk of sexual abuse – Determined that the matter be adjourned in the interests of justice –Application granted and new hearing dates allocated
Legislation:	Family Law Act 1975 (Cth) s 102NA Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited:	Mertens & Mertens [2016] FamCAFC 136
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	22 November 2023
Place:	Sydney
The Applicant:	Litigant in person
Solicitor for the Respondent:	Mr Lovemore of Lovemore Lawyers
Counsel for the Independent Children's Lawyer:	Mr Guterres
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

PAC 1079 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MALDONADO Applicant
AND:	MS MALDONADO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	22 NOVEMBER 2023