Montilla & Saldano

[2025] FedCFamC2F 599

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Montilla & Saldano [2025] FedCFamC2F 599

File number(s):	PAC 4426 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	28 April 2025
Catchwords:	FAMILY LAW – Application in a Proceeding - adjournment application – adjournment dismissed.
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	10
Date of hearing:	28 April 2025
Place:	Sydney
For the Applicant:	The Applicant Appeared via video/audio-link
Solicitor for the Respondent:	Mr N Hardy-Clements of Jones Hardy Law
Counsel for the Independent Children's Lawyer:	Mr A W Mooney
Solicitor for the Independent Children's Lawyer:	Strive Family Law & Mediations

ORDERS

PAC 4426 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MONTILLA

Applicant

AND:

MS SALDANO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	28 APRIL 2025

THE COURT ORDERS THAT:

1.The Application in a Proceedings for an adjournment filed by the Applicant on 28 April 2025 is dismissed.

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).

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are parenting proceedings that were fixed for a final hearing on 13 September 2024, and are listed for three days.  The Court received an Application in a Proceeding and a brief affidavit from the applicant father (“the father”), Mr Montilla, representing himself, seeking an adjournment on the grounds that his solicitors had filed a notice of ceasing to act, and that he did not have sufficient time to obtain legal representation. The father stated that that he had contacted Legal Aid, and that they had indicated that he would need an adjournment. The father submitted that the interest of justice warranted a further opportunity to obtain representation to prepare his case.

2. The adjournment is opposed by the respondent mother (“the mother”) and the ICL.  The child is now seven.  Orders were made on 13 September 2024, for steps to be taken by the father in respect of the trial.  Those steps were not complied with. 

3. The Court raised with the father whether, given the brief nature of his supporting affidavit, the Court should infer that the reason for the adjournment was due to a conflict between him and his solicitor. The father indicated that the solicitor was withdrawing because he had failed to respond to communications. The Court asked what the date of that communication was and was informed it was 28 March 2025.  Notwithstanding the reference to a want of response to communication, the Court does draw the conclusion that the reason for the solicitor’s withdrawal was due to conflict between the solicitor and the father.

4. Given the making of the section 102NA order on 2 April 2024, the consequence of a refusal of the adjournment application is that not only will the father have to represent himself, but he will also, because of that provision, not be entitled to cross-examine the mother. 

5. The Court must also take into account the relevant principles under pt 7 of the Family Law Act 1975 (Cth) (“the Act”).

6. In the present case, given the age of the proceedings and the history of the matter in terms of its commencement, notwithstanding the father’s reference to difficulties affecting service and there being other proceedings relating to criminal allegations, this matter is one which has been before the Court for almost four years. That is a substantial and significant period of time.  Whilst it may be that the father only seeks an adjournment for a few days, the Court has hearings already fixed and that would mean the adjournment would require a matter of 6-7 months. The consequence of that would be exposing not only the mother to the further costs and the burden and stress of a fresh hearing date, but it would also, the Court finds, given the age of the child, have an adverse impact on the child.

7. In parenting proceedings, it is the best interests of the child that the Court must take into account in accordance with the statutory provisions. Section 60CC of the Act is as follows:

   60CC How a court determines what is in a child's best interests

   Determining child's best interests

   (1)  Subject to subsection (4), in determining what is in the child's best interests, the court must:

   (a)  consider the matters set out in subsection (2); and

   (b)  if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

   General considerations

   (2)  For the purposes of paragraph (1)(a), the court must consider the following matters:

   (a)  what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

   (i)  the child; and

   (ii)  each person who has care of the child (whether or not a person has parental responsibility for the child);

   (b)  any views expressed by the child;

   (c)  the developmental, psychological, emotional and cultural needs of the child;

   (d)  the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

   (e)  the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

   (f)  anything else that is relevant to the particular circumstances of the child.

   (2A) In considering the matters set out in paragraph   (2)(a), the court must include consideration of:

   (a)  any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

   (b)  any family violence order that applies or has applied to the child or a member of the child's family.

   Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture

   (3)  For the purposes of paragraph  (1)(b), the court must consider the following matters:

   (a)  the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

   (i)  to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

   (ii)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (iii)  to develop a positive appreciation of that culture; and

   (b)  the likely impact any proposed parenting order under this Part will have on that right.

   Consent orders

   (4)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection  (2) or (3).

8. Given the nature of these proceedings and that this application is interlocutory, the Court is entitled to deliver short reasons under s 69ZL of the Act. The Court has considered each of the matters referred to in s 60CC(1), (2) and (2A) of The Act, as well as the objects in s 60B, and the parenting principles in s 69ZN.

9. The Court is not satisfied that the interest of the administration of justice, in all the circumstances, warrant an adjournment of the proceedings.  The Court is also of the view that an adjournment is not in the best interests of the child. 

10. It is for these reasons the Court makes the above order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.

Associate:

Dated:        14 May 2025