Saracuna & Siddele - [2022] FedCFamC2F 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saracuna & Siddele [2022] FedCFamC2F 186

File number(s): SYC 7132 of 2018

Judgment of: JUDGE M NEVILLE

Date of judgment: 21 February 2022

Catchwords:
FAMILY LAW – Parenting – interlocutory hearing in relation to Application in a Proceeding seeking to prevent or delay vaccination of seven year old child against COVID-19 – where interim injunction against vaccination issued by the Supreme Court of New South Wales – application for stay of Application in a Proceeding pending determination of Federal Court judicial review proceedings concerning provisional approval of vaccine for five to 11 year old age group – application for stay refused.

FAMILY LAW – Parenting – interlocutory hearing –
application for removal of Application in a Proceeding from National COVID-19 List – application refused.

FAMILY LAW – Parenting – interlocutory hearing – application to adduce additional adversarial expert evidence in Application in a Proceeding – application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth)

Judiciary Act 1903 (Cth) s 39B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 1.11, 7.10, 7.11

Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 1 September 2021

Federal Circuit and Family Court of Australia, National COVID-19 List (FAM-COVID) Family Law Practice Direction, 1 September 2021

Federal Court Rules 2011 (Cth) r 16.32

Cases cited: Brown v Brown [2022] NSWSC 16

Division: Division 2 Family Law

Number of paragraphs: 121

Date of hearing: 17 February 2022

Place: Sydney

Solicitor for the Applicant: Ms Chiang of King & York Lawyers

The Respondent: Self-represented

Independent Children’s Lawyer: Mr MacDiarmid of Mark MacDiarmid Family Law Specialist
ORDERS

SYC 7132 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SARACUNA

Applicant

AND:
MS SIDDELE

Respondent

ORDER MADE BY:

JUDGE M NEVILLE

DATE OF ORDER:

21 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The mother’s application for a stay of proceedings pending determination of proceedings in the Federal Court of Australia as between the Australian Vaccination Network & the Department of Health is dismissed.
2.The hearing date of 21 March 2022 is confirmed for the hearing of the Application in a Proceeding filed by the mother on 17 January 2022.
3.The mother’s application for leave to adduce expert evidence from up to three expert witnesses is refused.
4.The court confirms the direction made by the Judicial Registrar on 24 January 2022 that each party has leave to adduce evidence from one adversarial expert at the hearing.
5.The court extends the time for the mother to file and serve any expert evidence for which leave has been granted to 14 March 2022.
6.The mother’s application to remove the Application in a Proceeding filed by her on 17 January 2022 from the COVID-19 list is refused.
7.By 5.00pm on 21 February 2022 the father through his legal representative is to provide to the mother the names and contact details of each…

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 Saracuna & Siddele

Details

AGLC: Saracuna & Siddele [2022] FedCFamC2F 186
Case: [2022] FedCFamC2F 186
Decision Date

CaseChat Overview and Summary

The matter before the court was an interlocutory application by the mother, Ms Siddele, in proceedings between her and Mr Saracuna, the father, regarding the COVID-19 vaccination of their seven-year-old child, X. The mother sought to stay the hearing of her Application in a Proceeding, filed on 17 January 2022, pending the determination of Federal Court proceedings between the Australian Vaccination Network and the Secretary, Department of Health. She also sought to remove the Application in a Proceeding from the National COVID-19 List, to adduce expert evidence from up to three adversarial experts, and to seek a further adjournment if her grant of Legal Aid was significantly delayed. The father opposed these applications. The court had to decide whether the Application in a Proceeding should be stayed pending the Federal Court proceedings and whether the Application in a Proceeding should be removed from the National COVID-19 List, and if not, whether leave should be granted to each party to call evidence from up to three adversarial experts. The court also had to determine whether the mother should be given leave to seek a further adjournment if her grant of Legal Aid was significantly delayed.

The court determined that the Application in a Proceeding should not be stayed pending the Federal Court proceedings as it considered that the balance fell in favour of hearing and determining the Application in a Proceeding. The court considered that the mother’s application for removal of the Application in a Proceeding from the National COVID-19 List should be refused as there appeared to be no practical difference in the case management of the matter as it had been fixed for hearing. The court dismissed the mother’s application to adduce expert evidence from up to three adversarial experts as it considered that the leave granted by the Judicial Registrar to adduce expert evidence from one adversarial expert should remain undisturbed. The court refused the mother’s application to seek a further adjournment in the event that Legal Aid NSW was significantly delayed in processing the transfer of her grant of Legal Aid. However, the court noted that the matter would be listed for compliance check before the court on 16 March 2022, and the mother could raise any ongoing issues with the transfer of the grant of Legal Aid at that point.

The court ordered that the hearing date of 21 March 2022 was confirmed for the hearing of the Application in a Proceeding filed by the mother on 17 January 2022. The court refused the mother’s application for a stay of proceedings pending determination of proceedings in the Federal Court of Australia. The court also refused the mother’s application for leave to adduce expert evidence from up to three expert witnesses. The court confirmed the direction made by the Judicial Registrar on 24 January 2022 that each party has leave to adduce evidence from one adversarial expert at the hearing. The court extended the time for the mother to file and serve any expert evidence for which leave has been granted to 14 March 2022. The court refused the mother’s application to remove the Application in a Proceeding filed by her on 17 January 2022 from the COVID-19 list. By 5.00pm on 21 February 2022 the father through his legal representative was to provide to the mother the names and contact details of each of the medical practitioners upon whom X has attended whilst she has been living with the father since April 2020. The matter was adjourned to 16 March 2022 at 9:30am for compliance check. Leave was granted to the Independent Children’s Lawyer to relist the matter on short notice by contacting the court’s Associate by email.

Orders