Merino & Artigas - [2022] FedCFamC1F 544

Federal Circuit and Family Court of Australia
(DIVISION 1)
Merino & Artigas [2022] FedCFamC1F 544

File number(s): SYC 6408 of 2018

Judgment of: ALTOBELLI J

Date of judgment: 14 June 2022

Catchwords: FAMILY LAW – PROCEDURAL – Application to withdraw from the record – Where the mother discharged her legal representation in any event – Application to withdraw granted – Where the mother makes adjournment application on the basis of needing time to prepare her case – Where litigation has already been delayed – Considerations of the mother’s conduct in litigation, the public interest and the interests of the child in having the prolonged litigation conclude – Application to adjourn dismissed.

Division: Division 1 First Instance

Number of paragraphs: 10

Date of hearing: 14 June 2022

Place: Sydney

Counsel for the Applicant: Mr O’Reilly

Solicitor for the Applicant: Doolan Wagner Family Lawyers

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

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

SYC 6408 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MERINO

Applicant

AND:
MS ARTIGAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

14 JUNE 2022

THE COURT ORDERS THAT:
1.Leave is granted to the legal representatives for the Respondent to withdraw from the record.
2.The Respondent’s oral application for an adjournment of the final hearing is dismissed.
3.The final hearing is adjourned to 15 June 2022 at 10am.
4.By no later than 14 June 2022 at 2pm, the Respondent is to identify the affidavits already filed on which she intends to rely and notify the Applicant, the Independent Children’s Lawyer and chambers of the same.
5.By no later than 14 June 2022 at 5pm, the Respondent is to notify the Applicant, the Independent Children’s Lawyer and chambers of the minute of order that she proposes the Court make on a final basis, if different from those in her Amended Response filed 20 May 2022.
6.By no later than 15 June 2022 at 10am, the Respondent is to provide a proof of evidence by way of dot points to the Applicant and the Independent Children’s Lawyer.

THE COURT NOTES THAT:
A.The Respondent’s solicitor and Mr Fantin of counsel appeared on behalf of the Respondent but were granted leave to withdraw from the record.

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.
IT IS NOTED…

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 Merino & Artigas

Details

AGLC: Merino & Artigas [2022] FedCFamC1F 544
Case: [2022] FedCFamC1F 544
Decision Date

CaseChat Overview and Summary

In the matter of Merino & Artigas, the court dealt with a case concerning a child, X, who was almost nine years old. The litigation had been ongoing since 2018, almost half of X’s life. The proceedings were before the Federal Circuit and Family Court of Australia, Division 1. The main issues before the court were whether to grant the mother's legal representatives leave to withdraw, and whether to adjourn the final hearing based on the mother's claim of needing more time to prepare her case. The mother had discharged her legal representation and sought an adjournment on the basis of needing time to prepare her case.

The court considered several options, including adjourning the proceedings to the next available hearing date in February 2023, proceeding on an undefended basis, allowing the mother time to identify the affidavit material on which she relied and to prepare her cross-examination of the witnesses in the father's case, or hearing the matter on an interim basis and then adjourn the matter for further hearing. The court noted that the greatest concern was to minimize the pressure of ongoing litigation on X. After weighing the considerations, the court decided to decline the mother’s application for an adjournment and dismissed the application. Instead, the court decided to proceed to hear the matter as best it could during the course of the week. The court also granted leave to the mother's legal representatives to withdraw from the record. The final hearing was subsequently adjourned to 15 June 2022 at 10 am. The court ordered the mother to provide certain documentation by specific deadlines.

Orders