Saracuna & Siddele (No 2)
[2022] FedCFamC1F 707
•8 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Saracuna & Siddele (No 2) [2022] FedCFamC1F 707
File number(s): SYC 7132 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 8 August 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother has requested an adjournment of final hearing for a third time to further contest an appeal decision in which Legal Aid NSW has refused to grant legal aid to the mother – A party does not have a right to legal aid – Application for an adjournment refused. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia, Guidelines for Independent Children's Lawyers 2021
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Brown v Brown [2022] NSWSC 16
Hart v Deputy Commissioner of Taxation [2016] FCA 250
Saracuna & Siddele [2022] FedCFamC1F 275
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 8 August 2022 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: King & York Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Mr MacDiarmid 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:
8 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant mother’s application to adjourn the final hearing be refused.
2.The mother is granted leave to proceed on her application for interim orders and to rely upon the affidavit filed on 2 August 2022 by way of evidence filed in these proceedings.
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 the 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:
In this matter, the dates previously set down for hearing were adjourned for reasons I delivered in an earlier judgment on 27 April 2022: Saracuna & Siddele [2022] FedCFamC1F 275. In that judgment, I granted the mother’s request for an adjournment on a second occasion in circumstances where she wished to appeal against a rejection of her application for legal aid. An earlier adjournment request was also previously granted because the mother, the applicant for the adjournment, had been unwell and there were issues in respect to the time available to prepare the mother’s case in accordance with dates previously allocated by the Court.
The mother has now explained her reasons for seeking an adjournment for a third time, which are primarily based on the fact that Legal Aid NSW have rejected her appeal against their refusal to grant her legal aid. The mother contends that they have done so erroneously and, specifically, that Legal Aid NSW have ignored her reasons, which essentially relate to the merits of her application. She further contends that orders are required such that the child spends equal time with both parents and that orders be made in accordance with the wishes of the child. The mother contends that Legal Aid NSW have failed to have regard to at least those relevant considerations.
The mother has apparently approached Legal Aid NSW regarding what she contends was their failure to understand the substance of her application, at which time she was advised that her application was rejected because it substantially duplicated her earlier original application, which was submitted one year ago. The mother attests to the fact that she has attempted on many occasions to contact Legal Aid NSW and has had several discussions with them about the opinion that they have formed that her current application substantially replicates her earlier application. The mother has contacted the solicitors who previously acted for her but unfortunately has not been able to obtain the documentation relating to the first application, that documentation being significant from the mother’s perspective as she wishes to demonstrate to Legal Aid NSW that her current application is different from her first application.
Essentially, therefore, the mother asserts that she requires more time to reassess and collate that information with a view to making a further submission to Legal Aid NSW to the effect that the opinion that they have formed that her application is substantially in the same terms as the previous application is in fact an error.
The mother further states that if she is unsuccessful in that further representation to Legal Aid NSW, then she intends to apply for pro bono legal assistance and is making enquiries about accessing a program which she understands is provided through the Law Society of New South Wales.
With respect to the mother, a party does not have a right to legal aid. Legal aid is granted on an assessment made by Legal Aid NSW both as to means of the applicant and merits of the case. There has been an application for legal aid that has been rejected. There has been an appeal against the rejection that has been rejected. It is merely speculative as to whether any further representations or applications made by the mother will be successful.
In considering the mother’s application for an adjournment I am required to have regard to the provisions of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), which relevantly provide:
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court's overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)the Rules of Court;
(b)any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
In having regard to the overarching purpose, I must therefore balance, on the one hand, a speculative possibility of the mother succeeding in a further review of legal aid as against the impact of an adjournment on the father and also on the business of the Court.
Additionally, the mother indicates that she has had difficulty in responding to case outline documents filed and served on 4 August 2022 by the father and served by the Independent Children’s Lawyer (“ICL”) over the weekend on 7 August 2022. This difficulty in giving adequate attention to those documents, the mother contends, is in circumstances where the child was in her care over the weekend.
I have read both of the case outline documents. In the father’s case, the document essentially draws together a chronology of relevant facts contended by the father, sets out the terms of the orders he is seeking and presents arguments that will presumably be made to the Court in support of the father’s application. That case outline does not adduce fresh evidentiary material. It is essentially a summary of the evidentiary material that the father seeks to rely upon.
Similarly, in terms of the case outline filed by the ICL, there is a reference to another authority of the Court concerning COVID-19 vaccinations and also an indication on the part of the ICL as to the orders that they will be proposing which are, in terms of spend time arrangements, essentially those proposed by the father but otherwise proposing some amendments. In summary, these case outline documents are of assistance to the Court and the parties generally, including the mother, in refining the arguments that will be presented but do not adduce any additional evidentiary material.
Again, having regard to the overarching purpose, I do not consider that the receipt by the mother of these documents justify an adjournment.
The mother also raises concerns regarding the ICL, who she contends has had some difficulty in arranging an interview with the child. That is not due to a lack of effort on the part of the ICL. While such an opportunity is something that is desirable and consistent with the Federal Circuit and Family Court of Australia Guidelines for Independent Children’s Lawyers 2021, there is nonetheless information before the Court concerning the views of the child. The mere fact that a meeting between the ICL and the child has not occurred is not, in and of itself, a ground for adjournment.
Additionally, I have had regard to the context in which these proceedings are occurring, which include the fact that, in early 2022, the mother filed an application in the Supreme Court of New South Wales seeking an injunction against the father from having the child vaccinated with the COVID-19 vaccination. The matter proceeded on an ex parte basis and there is a conflict between the parties as to whether the father was actually served with that application. It is not, however, necessary for me to resolve that controversy. The judgment of Kunc J in Brown v Brown [2022] NSWSC 16 clearly establishes that the injunction, which was granted against the father on an ex parte basis restraining him from exercising parental responsibility in respect to the child being vaccinated. The clear intention of the Court was to restrain the father only until such time as this Court had the opportunity of dealing with the matter. In other words, it is quite clear from the substance of the judgment, including the time limit placed upon the mother to commence proceedings in this Court in respect to that application, that his Honour anticipated that the matter would be dealt with expeditiously. We are now at a point in time that is eight months after that decision was delivered.
In rejecting the mother’s adjournment application, I have also had regard to the litigation history since that Supreme Court decision, which is as follows:
·On 17 January 2022, the mother filed an Application in a Proceeding consistent with the orders of Kunc J.
·On 21 January 2022, the father filed his Response to the mother’s restraining application. On 24 January 2022, interim consent orders were made concerning a variation of spend time arrangements.
·On 17 February 2022, Judge Neville heard the matter for an interim defended hearing and the mother pressed her application for the proceedings to be stayed pending the determination of a case challenging the authorisation of the COVID-19 vaccination in the Federal Court of Australia. This was followed by her Honour Judge Neville delivering judgment on 21 February 2022 dismissing the mother’s application for a stay and also making further directions regarding the future progress of the matter.
·On 16 March 2022, the matter was listed before me for mention, at which time the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia. The mother then sought an adjournment for four months. On that day, I delivered ex tempore reasons granting the adjournment to the mother, on the basis that the mother had unfortunately succumbed to the COVID-19 virus and was unable to prepare for hearing. I therefore set the matter down for final hearing on 9 May 2022 for four days and issued the standard trial directions for the matter to proceed. My associate also made arrangements to obtain an expedited Family Report from the Regulation 7 Family Consultant Ms AF, which has since been obtained.
·On 13 April 2022, there was correspondence received from the father’s solicitors seeking clarification as to whether Ms AF was to be provided with previous single expert reports and, consequently, I set the matter down for a further case management hearing on 27 April 2022. The father filed his trial affidavits on 20 April 2022 and his Amended Application for Final Orders on 21 April 2022.
·On 27 April 2022, I heard the mother’s application for a further adjournment for reasons which I set out, including to enable the mother to apply for a review of the decision declining her application for legal aid.
·On 3 May 2022, the Family Report of Ms AF was released to the parties.
·On 2 August 2022, the mother filed an Application in a Proceeding seeking an adjournment of the four day hearing which had been listed to commence today, 8 August 2022.
For completeness, I note that, while it was not pressed in her arguments today, the mother’s affidavit in support of her adjournment application stated that she wishes to make an application for representation pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). That section provides that, in circumstances where a party is the subject of a family violence order, cross-examination is not permitted. There is also a second discretionary category, that is, where family violence is alleged but no such order has been made. Although it has not been raised in argument by the mother, I note that in orders made on 24 June 2019, there was a notation to those orders advising the parties of the potential for them to make an application for legal assistance pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme, having regard to the operation of s 102NA. A similar notation was made to orders made by the Court on 2 August 2021.
Accordingly, the mother has been on notice for a substantial period of time regarding her ability to apply for representation through the s 102NA scheme. In any event, in circumstances where there is no currently applicable family violence order in place, this matter is in the discretionary category outlined above. In circumstances where the mother will not be cross-examined by the father personally, but rather, through his counsel and in circumstances where the mother will be invited to cross-examine the father while she is appearing remotely by way of Microsoft Teams, I am satisfied that there are sufficient protective measures in place such that the trial can proceed consistent with the principles of s 102NA, having regard to the mother’s allegations of family violence and ensuring that measures are in place to sufficiently allay the mother’s concerns in that respect.
By way of summary, in the decision of Hart v Deputy Commissioner of Taxation [2016] FCA 250, Edelman J at [7] had regard to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and summarised four matters that the Court should fundamentally take into consideration in granting an adjournment, which are:
(1)The explanation for the adjournment sought;
(2)The detriment to the other parties: in this case, the father would be preparing for yet another occasion for final hearing, which would be a significant detriment to him. Additionally, there is potential detriment to the child if the father ultimately succeeds in his application to be permitted to have the child vaccinated, as the adjournment would protract the time in which the child remains unvaccinated pending any adjourned hearing.
(3)The detriment to other litigants in the Court: I have earlier referred to the fact that this is the second occasion where the Court has allocated four days for the final hearing of this matter which, if the mother’s application succeeds, would be abandoned and not be utilised by other litigants because it is now too late to do so.
(4)The parties’ choices to date in the litigation: in this regard, I have referred to the history that has occurred since the decision of Kunc J in January this year.
In applying those principles, I have regard to: the conduct of the proceedings to date, which I have set out earlier, the reasons sought for the adjournment and also the subject matter of this litigation. That subject matter includes an application that must be addressed with some degree of expedition, namely, matters concerning the health of the child and, in particular, whether the father should be permitted to have the COVID-19 vaccination administered to the child.
Those matters have been considered in the context of the overarching consideration set out in s 67 of the FCFCOA Act, which requires not only fairness to the parties of these proceedings, but also regard for the interests of other litigants who have proceedings before the Court and the necessity of the Court to conduct its affairs efficiently.
Accordingly, for all of the above reasons, I refuse the mother’s application for an adjournment.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 15 September 2022
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