Saracuna & Siddele (No 2) - [2022] FedCFamC1F 707

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…

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 (No 2)

Details

AGLC: Saracuna & Siddele (No 2) [2022] FedCFamC1F 707
Case: [2022] FedCFamC1F 707
Decision Date: 8 August 2022

CaseChat Overview and Summary

The parties involved in Saracuna & Siddele (No 2) were the mother, Saracuna, and the father, Siddele, in a parenting dispute. Saracuna sought to adjourn the final hearing for a third time to contest an appeal decision regarding the refusal of legal aid by Legal Aid NSW. The Family Court of Australia was tasked with deciding the legal issues surrounding this application.

The court was required to determine whether the mother had a right to legal aid and whether an adjournment was warranted in the circumstances. The court considered that a party does not have an absolute right to legal aid and that the decision of Legal Aid NSW to refuse legal aid was not subject to judicial review. The court also examined whether the adjournment was necessary to ensure a fair hearing and whether there were any exceptional circumstances justifying the adjournment.

The court held that there was no right to legal aid and that the refusal of legal aid by Legal Aid NSW was not a matter for the court to review. The court also found that the mother had not demonstrated any exceptional circumstances that would justify a third adjournment of the final hearing. The court was concerned that further delays would cause significant hardship to the child and that it was in the best interests of the child for the matter to proceed without further delay. Therefore, the court refused the application for an adjournment.

The court granted the mother leave to proceed on her application for interim orders and to rely on the affidavit filed on 2 August 2022 as evidence in the proceedings. The form of the order was subject to the entry in the Court's records.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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

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