Saracuna & Siddele (No 2) - [2022] FedCFamC2F 293

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saracuna & Siddele (No 2) [2022] FedCFamC2F 293

File number(s):

SYC 7132 of 2018

Judgment of:

DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment:

16 March 2022

Catchwords:

FAMILY LAW – Parenting – adjournment – where the mother has commenced proceedings in this Court seeking that the father be restrained from exercising his parental responsibility for the purpose of administering of the Covid-19 vaccination to the child – where the mother seeks an adjournment due to being in receipt of a grant of legal aid but not being legally represented – where the mother seeks an adjournment on the basis that she is currently suffering with Covid-19 – where the Independent Children’s Lawyer seeks for the matter to be brought to finality – matter set down for final hearing – adjournment application granted

Cases cited:

Anton & Malitsa (No. 2) [2009] FamCA 242

Brown v Brown [2022] NSWSC 16

Gallo v Dawson (1990) 93 ALR 479; [1992] HCA 44

Nabers & Nabers [2011] FamCAFC 145

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1

Division:

Division 2 Family Law

Number of paragraphs:

13

Date of hearing:

16 March 2022

Place:

Sydney

Applicant:

Litigant in Person

Solicitor for the Respondent:

King & York Lawyers

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 2)

BETWEEN:
MS SIDDELE

Applicant

AND:
MR SARACUNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

16 MARCH 2022

THE COURT ORDERS THAT:
1.The mother’s application for an adjournment of the Interim Defended Hearing listed before Deputy Chief Judge McClelland at 10:00 am, 21 March 2022 is granted.
2.The matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia.
3.The matter is set down for final hearing, in respect to all issues, before the Honourable Deputy Chief Justice McClelland at 10:00 am, 9 May 2022 with an estimated hearing time of four (4) days.
4.No later than 21 days prior to the trial date, the Applicant father file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely;

5.No later than 14 days prior to the trial date, the Respondent mother file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely

6.Pursuant to r 7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) each party may, if they so choose, rely upon evidence from an expert adversarial witness in respect to the issue as to whether or not it is in the child’s best interest to be administered with the covid-19 vaccination.
7.No later than 7 days prior to the…

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] FedCFamC2F 293
Case: [2022] FedCFamC2F 293
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the parents of a child over the administration of a Covid-19 vaccination. The mother, who is the applicant, sought an adjournment of the interim defended hearing to prevent the father from administering the vaccination to the child. The matter was set down for a compliance hearing to determine whether the mother's application for an adjournment should be granted. The legal issues before the court were whether the adjournment application should be granted and, if so, for what period. The court considered the mother's affidavit, which outlined several reasons for the adjournment, including her recent Covid-19 infection and her ongoing efforts to obtain the child's medical records. The court also considered the submissions of the Independent Children's Lawyer, who argued that the matter should be brought to finality as soon as reasonably practicable. After weighing the relevant factors, the court granted the adjournment application and set the matter down for a final hearing in May 2022.
The court found that the mother's recent Covid-19 infection and the ongoing efforts to obtain the child's medical records were sufficient grounds for an adjournment. The court noted that it was unreasonable to expect the mother to prepare and present an argument as a self-represented litigant in such circumstances. The court also considered the need to balance the resources of the court, its rules and its management with the need to consider justice for both parties. The court found that it was desirable to finalise the litigation as soon as reasonably practicable and set the matter down for a final hearing in May 2022. The court also made several orders to ensure that the final hearing was efficient and effective, including limiting the number of affidavits and expert witnesses that each party could rely on and requiring that all documents be filed in electronic format.

Orders