XUAREZ & VITELA

[2015] FamCA 293

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA [2015] FamCA 293

FAMILY LAW  - PRACTICE & PROCEDURE – STAY – where the father seeks a stay of the outstanding parenting applications pending his obtaining pro bono legal representation – where the parties have been engaged in litigation since 2010 – where the interests of justice do not favour the granting of a stay – where the application is dismissed. 

APPLICANT: Mr Xuarez

RESPONDENT: Ms Vitela

INDEPENDENT CHILDREN’S LAWYER: Ms O'Reilly

FILE NUMBER: BRC 7312 of 2007

DATE DELIVERED: 20 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 April 2015

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Carlton

SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Reilly of MTM Lawyers

Orders

IT IS ORDERED THAT

1. The Respondent’s Application in a Case filed 12 July 2012 is adjourned to the first day of the trial of this matter.

2. The Applicant has leave to make an oral application seeking an order that the hearing of the proceedings for final parenting orders be stayed until such time as he is provided with legal representation on a pro bono basis.

3. The Applicant’s oral application made today seeking an order that the hearing of the proceedings for final parenting orders be stayed until such time as he is provided with legal representation on a pro bono basis is dismissed.

4. The Applicant’s Application in a Case filed 13 April 2015 is dismissed.

IT IS ORDERED BY CONSENT THAT

1. The Applicant’s Application in a Case filed 16 November 2012 is dismissed.

2. The Applicant’s Application in a Case filed 25 August 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & Vitela has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7312 of 2007

Mr Xuarez

Applicant

And

Ms Vitela

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The Court has before it an application made orally, by leave, by the father for an order staying the hearing of the parenting application, which was commenced in 2010.  The basis of the father’s application rests upon an assertion that without legal representation he would not properly be afforded a fair trial and would not be in a position properly to present his case, in terms of seeking those parenting orders he seeks.  He has provided to the Court, a document, which I have marked as Exhibit “A”, which is his submission.  Additionally, he provided oral submissions to me in support of his application, both with the assistance of the interpreter provided today and on his own behalf.

2. This matter has been on foot - in the sense that proceedings have been foot about the parties’ children - for a very significant period of time.  Regard to the Initiating Application filed, as I have said, in 2010, makes that clear. 

3. Ms O’Reilly, the Independent Children’s Lawyer, was appointed in about mid 2011 at which time her appointment extended to four of the parties’ children.  One of those four has reached majority.  Ms O’Reilly says that another of the parties’ children will reach majority towards the end of this year.  At that time, then, there will be, as I understand it, two children of the parties amenable to orders of the Court, the youngest of whom is currently about 12 years of age. 

4. The mother opposes an order being made in terms sought by the father.  That opposition is outlined in submissions made by Mr Carlton on her behalf.  He submits that the father’s case for the making of an order staying the determination of the final parenting application does not identify any particular prejudice which would accord to Mr Xuarez over and above that which accords to those parties engaged in litigation in this Court who - for whatever reason - are required to act as self-represented litigants. 

5. It is clear that this Court undertakes a large number of trials in which one, if not both, of the parties are not legally represented.  It is not the fact that the absence of legal representation means that a party engaged in litigation in this Court is not accorded a fair trial. 

6. Mr Xuarez’s submissions assert the existence of complexity in the matter – he further raised the prospect that his case will require substantial affidavit evidence by way of response to the mother’s material, as well as advancing his own case.  There is nothing in the evidence to suggest that Mr Xuarez is not capable of preparing that evidence, particularly given his preparation of his own written submission – a document signed by him (dated 20 April 2015) and identified as having been prepared by him. 

7. Additionally, it is axiomatic that there has been a significant period of time since the commencement of litigation in this Court during which the parties can have been engaged in preparation for any impending trial.  It is imperative, I consider, that the matter be brought to a final hearing and that the applications commenced so long ago are finally heard and determined. 

8. Additionally, regard to the submissions made by Mr Xuarez, both with the assistance of the interpreter and by himself personally, clearly establishes, for my mind at least, that he is well across the issues he is likely to have to confront and that form part of the mother’s case.  He is clearly able to iterate and outline his opposition and what his case is her assertions and allegations.  He is clearly able to make a submission that evidence is required, not just an assertion, in relation to any fact that is in contention.  I consider that his submissions provide a basis for a conclusion that, with effort, he could well be in a position to prepare his case and, if necessary, with the assistance of an interpreter, present it before any judge to whom it is allocated as a final hearing. 

9. There has been, as I have said, sufficient time - more than sufficient time - for all of the parties engaged in this litigation to be prepared to place evidence before the Court so as to engage in a trial process, to be afforded the opportunity to cross-examine those witnesses who they assert are liars and to seek that the Court engaged in the determination of the matter make findings. 

10. There is nothing in the material before me to persuade me that the interests of justice require an order in the form sought by Mr Xuarez.  Rather, consistent with the obligations cast upon the Court in terms of finality, disposing of proceedings without undue delay, placing a consideration of the children’s needs first and the impact of an ongoing litigation process upon them (given that that process itself is about them and their parenting arrangements), it is clear that there is nothing to be gained – from the children’s perspective - by making an order staying the hearing of the proceedings. 

11. I have no doubt that appropriate directions will continue to be made to afford to Mr Xuarez the appropriate time to prepare his material and to prepare to engage himself as a litigant in person in the process. 

12. A hearing will provide to him the opportunity to challenge those matters which he says are lies (contained within the material relied upon by the mother) and it will afford to him the opportunity to make submissions to the judge - to whom the matter is allocated as a final hearing – about the reasons why that judicial officer should be persuaded to reach the conclusions he seeks on the evidence before the Court at that time.  The fact of allocation of trial dates at the appropriate time will afford to Mr Xuarez, a party in litigation, the opportunity properly to be heard and to participate. 

13. For those reasons, then, I dismiss the oral application made by Mr Xuarez this morning.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 April 2015.

Associate:                 

Date:    20 April 2015