Saracuna & Siddele

[2022] FedCFamC1F 275

Federal Circuit and Family Court of Australia

(DIVISION 1)

Saracuna & Siddele [2022] FedCFamC1F 275

File number(s):	SYC 7132 of 2018
Judgment of:	MCCLELLAND DCJ
Date of judgment:	27 April 2022
Catchwords:	FAMILY LAW – PARENTING – ADJOURNMENT – Where a final hearing has been set down to commence on 9 May 2022 – Where the respondent mother was in receipt of a grant of legal aid – Where the respondent mother has received a letter from Legal Aid NSW cancelling her grant of aid – Where the respondent mother seeks to appeal the decision of Legal Aid NSW – Where the Court is compelled to adjourn the hearing pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) – Adjournment application granted
Legislation:	Legal Aid Commission Act 1979 (NSW) s 57
Division:	Division 1 First Instance
Number of paragraphs:	6
Date of hearing:	27 April 2022
Place:	Melbourne (via videoconference)
Solicitor for the Applicant:	King & York Lawyers
The Respondent:	Litigant in Person
Solicitor for the Independent Children's Lawyer:	Mark Macdiarmid Family Law Specialist

ORDERS

SYC 7132 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SARACUNA

Applicant

AND:

MS SIDDELE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	MCCLELLAND DCJ
DATE OF ORDER:	27 APRIL 2022

THE COURT ORDERS THAT:

1.The final hearing listed for four days commencing 9 May 2022 is vacated.

2.The matter is adjourned for further hearing at 10:00 am, 8 August 2022 with an estimated hearing time of four days.

3.The parties and the Independent Children’s Lawyer have liberty to apply in the event of those dates not being practicable upon giving three days written notice to the other parties and the Court.

4.The Independent Children’s Lawyer is requested to provide a copy of the judgment of Judge Neville dated 31 January 2020 to the family report writer, Ms AF.

5.The respondent mother is directed to file an appeal against the decision of Legal Aid NSW dated 26 April 2022 within 7 days of these orders.

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 that publication of this judgment by this Court under a pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MCCLELLAND DCJ:

1. This decision concerns an adjournment application by the mother, Ms Siddele (“the mother”) of parenting proceedings that have been listed for final hearing for four days commencing 9 May 2022.

2. The mother was notified by letter from Legal Aid NSW dated 26 April 2022 that they have cancelled a grant of legal aid that had been allocated to her.

3. The mother has indicated an intention to appeal that decision in accordance with the procedures set out in that letter which I will mark as exhibit A in these proceedings.

4. In those circumstances, in my view I am compelled by s 57 of the Legal Aid Commission Act 1979 (NSW) to adjourn the hearing of the matter to enable the mother to lodge that appeal. This is in circumstances where I am satisfied that the facts of this matter do not give rise to the special circumstance considerations set out in s 57(c) of that Act.

5. In forming that view I note the significant concern of the father, Mr Saracuna that he would like the child, X (“the child”) to be vaccinated against the COVID-19 virus as soon as possible. It is accepted however that there is a level of protection that the child has as a result of having previously been infected with the virus. While the injunction issued by the Supreme Court of NSW anticipated that this matter would be expeditiously dealt with, the circumstances that have arisen are such that that has not been possible.

6. Weighing up the totality of the issues including procedural fairness considerations, the Court is of the view that the circumstances previously stated do not trigger the special circumstances provision set out in s 57(c) and on that basis the Court feels compelled to grant the adjournment sought by the mother.

I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       27 April 2022