Sirola & Sirola - [2016] FamCA 620

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA AND ANOR

[2016] FamCA 620

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the self-represented husband sought an adjournment of the interim hearing by way of an inappropriate communication with the Judge’s chambers – Where there was confusion as to the procedural advice then given by the Registry to the husband – Consideration of the protocol for communicating directly with a Judge’s chambers – Adjournment granted.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Sirola

1ST RESPONDENT:

Mr Sirola

2ND RESPONDENT:

Ms D

INDEPENDENT CHILDREN’S LAWYER:

Ms Hayward as agent

FILE NUMBER:

SYC

5380

2014

DATE DELIVERED:

16 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

16 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Stubbs of Harris Freidman Lawyers

FOR THE 1ST RESPONDENT:

Mr Sirola by telephone

FOR THE 2ND RESPONDENT:

Ms Torrisi of Australian Family Law Practice

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

THE COURT ORDERS BY CONSENT THAT:

The paternal grandmother, Ms D, is granted leave to join the proceedings as the second respondent.

THE COURT FURTHER ORDERS THAT:

The respondent husband’s application for an adjournment of the hearing listed on 17 June 2016 in respect to the wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 is granted.
The wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 are listed for hearing at 10.00 am on 28 June 2016.
In the event that any party fails to appear on 28 June 2016 then the hearing shall proceed on that date and be determined in the absence of that party.
I DIRECT that each of the parties is to file and serve any further material upon which intend they to rely in respect to the Application in a Case filed 10 March 2016 and the Application in a Case filed 29 April 2016 by no later than close of business on 22 June 2016.
No party is to file any additional material in support of the Applications in Case referred to in Order 4 above after close of business on 22 June 2016 without leave of the Court.
The final hearing dates of 3, 4 and 5 August 2016 and 18 and 19 August 2016 in respect to parenting and property matters are confirmed.
I CONFIRM that the Orders made on 15 March 2016 in respect to the conduct of the final hearing are to apply other than in respect to Order 5 which is to be amended to delete words “3 July 2016” and replace those words with “19 July 2016.”
The Orders made on 2 May 2016 are to continue.
The parties’ costs of this adjournment application and the costs thrown away as a result of the adjournment are reserved.

Note: The form of the order is subject 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 Sirola & Sirola

Details

AGLC: Sirola & Sirola [2016] FamCA 620
Case: [2016] FamCA 620
Decision Date: 16 June 2016

CaseChat Overview and Summary

In the matter of *Sirola & Sirola*, heard before McClelland J, the proceedings involved a dispute between a wife and a husband, with the paternal grandmother seeking to join as a party. The husband applied for an adjournment of the hearing scheduled for 17 June 2016, which concerned the wife's application filed on 10 March 2016 and the paternal grandmother's application filed on 29 April 2016.

The court was required to determine whether to grant the husband's application for an adjournment and to set new hearing dates for the wife's and paternal grandmother's applications. Additionally, the court needed to establish a timetable for the filing and service of further material by the parties and confirm existing final hearing dates for parenting and property matters.

McClelland J granted the husband's application for an adjournment, rescheduling the hearing for the wife's and paternal grandmother's applications to 28 June 2016. The court directed that any party failing to appear on this date would have the hearing proceed in their absence. A strict deadline of 22 June 2016 was imposed for the filing and service of further material, with no additional material to be filed thereafter without leave. The final hearing dates for parenting and property matters, originally set for August 2016, were confirmed, with a minor amendment to a previous order regarding the conduct of the final hearing. Existing orders from 2 May 2016 were to continue. The costs associated with the adjournment application and the costs thrown away were reserved.

Orders

Orders of the court

THE COURT ORDERS BY CONSENT THAT:

The paternal grandmother, Ms D, is granted leave to join the proceedings as the second respondent.

THE COURT FURTHER ORDERS THAT:

The respondent husband’s application for an adjournment of the hearing listed on 17 June 2016 in respect to the wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 is granted.

The wife’s Application in a Case filed 10 March 2016 and the Paternal Grandmother’s Application in a Case filed 29 April 2016 are listed for hearing at 10.00 am on 28 June 2016.

In the event that any party fails to appear on 28 June 2016 then the hearing shall proceed on that date and be determined in the absence of that party.

I DIRECT that each of the parties is to file and serve any further material upon which intend they to rely in respect to the Application in a Case filed 10 March 2016 and the Application in a Case filed 29 April 2016 by no later than close of business on 22 June 2016.

No party is to file any additional material in support of the Applications in Case referred to in Order 4 above after close of business on 22 June 2016 without leave of the Court.

The final hearing dates of 3, 4 and 5 August 2016 and 18 and 19 August 2016 in respect to parenting and property matters are confirmed.

I CONFIRM that the Orders made on 15 March 2016 in respect to the conduct of the final hearing are to apply other than in respect to Order 5 which is to be amended to delete words “3 July 2016” and replace those words with “19 July 2016.”

The Orders made on 2 May 2016 are to continue.

10.

The parties’ costs of this adjournment application and the costs thrown away as a result of the adjournment are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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