Saracuna & Siddele (No 3) - [2022] FedCFamC1F 915

Federal Circuit and Family Court of Australia
(DIVISION 1)
Saracuna & Siddele (No 3) [2022] FedCFamC1F 915

File number(s): SYC 7132 of 2018

Judgment of: MCCLELLAND DCJ

Date of judgment: 16 November 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the Court required clarification of the material relied upon by the parties – Mother granted leave to rely on written submissions provided out of time – Where the mother filed an Application in a Proceeding seeking to re-open the proceedings to adduce fresh evidence – Mother seeks to rely on a further affidavit affirmed after the conclusion of the final hearing – Re-opening proceedings would involve considerable delay and significant prejudice to the father – Against public interest – Mother’s Application in a Proceeding dismissed.

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68)

Cases cited:
Australian Securities and Investment Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826

Rice and Asplund (1979) FLC 90-715; [1978] FamCA 84

Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 16 November 2022

Place: Sydney (via videolink)

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: 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:

16 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The respondent mother’s Application in a Proceeding filed 15 November 2022 is dismissed.
2.The respondent’s affidavit dated 10 August 2022 that forms part of Exhibit A be replaced with the respondent’s affidavit dated 10 August 2022 and sent to Chambers and all parties on 10 October 2022.
3.Leave is granted to the respondent to rely upon her written submissions provided 7 October 2022 and the letter from NSW Revenue dated 19 August 2022 attached to her submissions as annexure “MS-S1B”, which is marked Exhibit “M” in the proceedings.
4.Within 7 days of the date of these orders, the applicant father is to file and serve written submissions as to his oral application for costs of today’s hearing of no more than two (2) pages.
5.Within 7 days of receipt of the applicant’s submissions in Order (4) above, the respondent mother is to file and serve written submissions in reply as to costs of today’s hearing of no more than (2) pages.
6.The costs of the Independent Children’s Lawyer of today’s hearing are reserved.

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

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 3)

Details

AGLC: Saracuna & Siddele (No 3) [2022] FedCFamC1F 915
Case: [2022] FedCFamC1F 915
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved Saracuna and Siddele, with the respondent, Ms Siddele, seeking leave to rely on written submissions provided out of time. The proceedings were originally listed for final hearing between 8 to 11 August 2022. At the conclusion of these proceedings, Ms Siddele was granted leave to file written submissions, which were due by 5 September 2022. This deadline was extended by consent to 16 September 2022, with the applicant required to reply by 23 September 2022. However, Ms Siddele submitted her written submissions on 7 October 2022, significantly after the extended deadline. Despite this delay, the Court granted her leave to rely on these submissions. Furthermore, Ms Siddele sought to rely on an affidavit dated 10 August 2022, which had been tendered in the proceedings and became part of Exhibit "A." On 10 October 2022, she sent a further email to chambers attaching the affidavit, which clarified annexures that were not attached to the original document. The parties did not object to the Court receiving the corrected annexures. However, Ms Siddele also sought to rely on a letter from the New South Wales Revenue Commissioner dated 19 August 2022, which clearly postdated the hearing. The applicant opposed the receipt of this evidence, and the Independent Children's Lawyer contended that it would be inappropriate for the Court to grant leave for the letter to be tendered.

The legal issues the Court was required to decide included whether to grant leave to Ms Siddele to rely on the late submissions and the postdated letter. The Court also needed to determine whether to re-open the proceedings to adduce fresh evidence and to release reports provided by AG Organisation to the parties for possible adduction as further evidence in the proceedings. The Court considered the nature of the proceedings, the importance of the issue on which the further evidence is sought to be adduced, the degree of relevance and probative value of the further evidence, the prejudice to the other party, the public interest and the timely conclusion of litigation, and the explanation offered for not having called the evidence. The Court found that reopening the proceedings would involve considerable delay and significant prejudice to the father. Additionally, the Court noted that ongoing litigation regarding parenting matters is not in the interests of children. Therefore, the Court dismissed Ms Siddele's Application in a Proceeding filed on 15 November 2022.

In summary, the Court granted leave to Ms Siddele to rely on her written submissions provided on 7 October 2022 and the letter from the New South Wales Revenue Commissioner dated 19 August 2022, which became Exhibit "M" in the proceedings. However, the Court dismissed her application to re-open the proceedings to adduce fresh evidence and to release reports provided by AG Organisation to the parties for possible adduction as further evidence in the proceedings. The Court's decision was based on the significant delay caused by Ms Siddele, the potential prejudice to the father, and the public interest in the timely conclusion of litigation.

Orders