Sofous and Cethenes and Ors - [2010] FamCA 883

FAMILY COURT OF AUSTRALIA

SOFOUS & CETHENES AND ORS

[2010] FamCA 883

FAMILY LAW – PROPERTY – Settlement

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sofous

FIRST RESPONDENT:

Ms Cethenes

SECOND RESPONDENT:

Mrs Cethenes Senior

THIRD RESPONDENT:

Mr Cethenes Senior

FILE NUMBER:

SYC

3049

2009

DATE DELIVERED:

8 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

8 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Steggall

SOLICITOR FOR THE APPLICANT:

Rosana Tyler Solicitor

FOR THE FIRST RESPONDENT:

No appearance

FOR THE SECOND RESPONDENT:

In person

THIRD RESPONDENT:

No appearance

Orders

THE COURT NOTED

There is no appearance by or on behalf of the Wife at 10:20 am today.
There is no appearance by or on behalf of the 3^rd Respondent at 10:20 am today.

THE COURT ORDERED

These proceedings are adjourned for mention before Justice Loughnan at 9:30 am on 22 November 2010 AND leave is granted to the legal representatives to attend by telephone on that date provided that not later than 18 November 2010, those legal representatives provide a relevant contact telephone number to Justice Loughnan’s associate.
In the event that the parties are legally represented the parties are excused from personal attendance on that date should they so wish.
In the event that either or both the 2^nd and 3^rd Respondents intend to attend personally on the adjourned date the Registry manager is requested to provide interpreters in the Greek language for any of them who will so attend. They should be engaged for half a day.

THE COURT FURTHER NOTED

That in the event that the 2^nd and 3^rd Respondents have not identified a proposed case guardian for the wife by the adjourned date, on the adjourned date the husband’s application for the appointment of an appropriate case guardian will be heard.
That the provisions of Rule 6.09 of the Family Law Rules which provide that a person may be a case guardian if that person:
(a)is an adult;
(b)has no interest in the case that is adverse to the interest of the person needing a case guardian;
(c)can fairly and competently conduct the case for the person needing a case guardian; and
(d)has consented to act as the case guardian.
The document titled “Orders” is Exhibit 1, that document contains orders sought on behalf of the husband today AND the Court adjourned consideration of those orders to 9:30 am on 22 November 2010.

THE COURT FURTHER ORDERED

The substantive proceedings are stayed until further order.
Leave is granted to any party to apply to restore the proceedings to the list on giving 7 days’ notice to each other and by arrangement with Justice Loughnan’s associate. That notice is to be accompanied by either a formal application or a letter setting out the reason for the restoration of the proceedings to the list.

AND THE COURT FURTHER NOTED

The Court is strongly of the view that the 2^nd and 3^rd Respondents require…

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 Sofous and Cethenes and Ors

Details

AGLC: Sofous and Cethenes and Ors [2010] FamCA 883
Case: [2010] FamCA 883
Decision Date: 8 September 2010

CaseChat Overview and Summary

In proceedings before Justice Loughnan, the husband sought orders concerning the appointment of a case guardian for the wife and other related matters. The wife and the third respondent did not appear at the scheduled hearing.

The primary legal issues before the court were whether to grant the husband's application for the appointment of a case guardian for the wife, and whether to grant a stay of the substantive proceedings. The court also considered the need for legal representation for the second and third respondents and the provision of Greek language interpreters.

Justice Loughnan noted the absence of the wife and the third respondent. The court adjourned the proceedings for mention before Justice Loughnan on 22 November 2010, granting legal representatives leave to attend by telephone, subject to providing contact details. The court also ordered that the substantive proceedings be stayed until further order and granted leave to any party to apply to restore the proceedings to the list on seven days' notice. The court further noted its strong view that the second and third respondents require legal representation and indicated that the husband's application for a case guardian would be heard on the adjourned date if no proposed guardian had been identified.

Orders

Orders of the court

THE COURT NOTED

There is no appearance by or on behalf of the Wife at 10:20 am today.

There is no appearance by or on behalf of the 3rd Respondent at 10:20 am today.

THE COURT ORDERED

These proceedings are adjourned for mention before Justice Loughnan at 9:30 am on 22 November 2010 AND leave is granted to the legal representatives to attend by telephone on that date provided that not later than 18 November 2010, those legal representatives provide a relevant contact telephone number to Justice Loughnan’s associate.

In the event that the parties are legally represented the parties are excused from personal attendance on that date should they so wish.

In the event that either or both the 2nd and 3rd Respondents intend to attend personally on the adjourned date the Registry manager is requested to provide interpreters in the Greek language for any of them who will so attend. They should be engaged for half a day.

THE COURT FURTHER NOTED

That in the event that the 2nd and 3rd Respondents have not identified a proposed case guardian for the wife by the adjourned date, on the adjourned date the husband’s application for the appointment of an appropriate case guardian will be heard.

That the provisions of Rule 6.09 of the Family Law Rules which provide that a person may be a case guardian if that person:

(a) is an adult;

(b) has no interest in the case that is adverse to the interest of the person needing a case guardian;

(d) has consented to act as the case guardian.

The document titled “Orders” is Exhibit 1, that document contains orders sought on behalf of the husband today AND the Court adjourned consideration of those orders to 9:30 am on 22 November 2010.

THE COURT FURTHER ORDERED

The substantive proceedings are stayed until further order.

10.

Leave is granted to any party to apply to restore the proceedings to the list on giving 7 days’ notice to each other and by arrangement with Justice Loughnan’s associate. That notice is to be accompanied by either a formal application or a letter setting out the reason for the restoration of the proceedings to the list.

AND THE COURT FURTHER NOTED

11.

The Court is strongly of the view that the 2nd and 3rd Respondents require legal representation.

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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