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Xuarez & Vitela

Xuarez & Vitela

Case [2017] FamCAFC 139 17 July 2017

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FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA

[2017] FamCAFC 139

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment – Where the appellant filed a Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the matter should be adjourned pending responses from Attorneys General – Where the notice does not “really and substantially” raise a matter under the Constitution or involving its interpretation – Whether an applicant is entitled to publicly-funded legal representation – Where the notice is incompetent and frivolous – Application dismissed.

Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 24(1)
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth) s 78B

Abbott & Abbott (1995) FLC 92-582
Amrit Lal Narain v Parnell (1986) 9 FCR 479
Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303
Dietrich v The Queen (1992) 177 CLR 292
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665
Johnson v Johnson (2000) 201 CLR 488
Kioa v West (1985) 159 CLR 550
Matsoukatidou v Yarra Ranges Council [2017] VSC 61
R v Bevan Ex parte Elias (1942) 66 CLR 452
Re An Application by the Public Service Association of New South Wales (1947) 75 CLR 430

APPELLANT:

Mr Xuarez

RESPONDENT:

Ms Vitela

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

FILE NUMBER:

BRC

7312

2007

APPEAL NUMBER:

2016

DATE DELIVERED:

17 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Aldridge & Cronin JJ

HEARING DATE:

17 July 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 March 2016

LOWER COURT MNC:

[2016] FamCA 159

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Bertone

SOLICITOR FOR THE RESPONDENT:

Sarah Cleeland Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew and Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

Orders

That the application for an adjournment be dismissed.

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

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 20 of 2016
File Number: BRC 7312 of 2007

Mr Xuarez

Appellant

And

Ms Vitela

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

Introduction

By Notice of Appeal filed on 1 April 2016, Mr…

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 Xuarez & Vitela

Details

AGLC: Xuarez & Vitela [2017] FamCAFC 139
Case: [2017] FamCAFC 139
Decision Date: 17 July 2017

CaseChat Overview and Summary

The case of Xuarez & Vitela involved the applicant seeking an adjournment of the hearing date, which was opposed by the respondent. The application was brought before the relevant Australian court, which needed to determine the validity of the request. The crux of the dispute was whether the applicant's circumstances warranted a postponement of the hearing, considering the implications of such a delay on the judicial process and the respondent's rights.

The court was required to assess whether the applicant had provided sufficient grounds for the adjournment and whether the request was made in good faith. Key considerations included the nature and urgency of the matters to be heard, the extent of preparation by both parties, and any potential prejudice to the respondent if the adjournment was granted. Additionally, the court needed to balance the applicant's right to a fair hearing against the respondent's right to a timely resolution of the dispute.

Upon reviewing the application, the court found that the applicant had not demonstrated compelling reasons justifying the adjournment. The evidence presented did not sufficiently support the claim of exceptional circumstances or urgent matters that could not be addressed within the existing timeframe. Consequently, the court determined that granting the adjournment would not serve the interests of justice and decided to dismiss the application. The court emphasised the importance of adhering to scheduled hearing dates to maintain the efficiency and fairness of the judicial process.

Orders

Orders of the court

That the application for an adjournment be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Xuarez & Vitela [2017] FamCAFC 139

Most Recent Citation

Massalski & Riley (No 6) [2022] FedCFamC1F 1029

Cases citing this decision · 9 of 9 shown

Vang & Chung (No 13)
[2025] FedCFamC1F 233 Para 14

…This Court in Xuarez and Vitela [2017] FamCAFC 139 cited with approval the decision of French J in Australian Competition and Consumer Commissionv C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 (“Berbatis”): …Concerning the obligation to adjourn, French J said: 14. Section 78B does not impose on the court a duty no…
Safi & Rafiq
[2023] FedCFamC1F 692 Para 17

…e Court to be satisfied that the challenge does not involve a matter arising under the Constitution or involving its interpretation ( Xuarez & Vitela [2017] FamCAFC 139 at [11]).…
Massalski & Riley (No 6)
[2022] FedCFamC1F 1029 Para 16

…[1999] FCA 849 and Australian Securities and Investment Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported). 23. In Xuarez & Vitela [2017] FamCAFC 139, the Full Court at [11] - [12], after citing the relevant authority said: [11] The word "matter" in section 78B has the same meaning as in chapter 3…
Duarte & Morse
[2022] FedCFamC1A 66 Para 9

…ly refrain from determining the appeal if it “involves a matter arising under the Constitution or involving its interpretation” ( Xuarez & Vitela [2017] FamCAFC 139 at [8]–[12]). While the appellant may believe it does, we do not.…
Pitman & Hynes
[2021] FamCA 300 Para 23

…In Xuarez & Vitela [2017] FamCAFC 139, the Full Court at [11] – [12], after citing the relevant authority said: [11] The word "matter" in section 78B has the same meaning as in chapter 3 of the constitution. Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. W…
Teitzel & Olman & Anor (No.2)
[2019] FCCA 3518 Para 16

…nd substantially involves the Constitution or its interpretation. This was explained by the Full Court of the Family Court in Xuarez & Vitela [2017] FamCAFC 139 in the following manner: 8. The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v Parnell…
Duarte and Anor & Morse
[2019] FamCAFC 93 Para 6

…really and substantially involves the Constitution or its interpretation. This was explained by the Full Court of the Family Court in Xuarez & Vitela [2017] FamCAFC 139 in the following manner: 8.The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v…
Xuarez & Vitela (No 2)
[2017] FamCA 1028 Para 3

…Notice and I adopt, with respect, the discussion regarding s 78B as set out in the judgment of the Full Court of 17 July 2017:[1] [1] Xuarez & Vitela [2017] FamCAFC 139 23. The application of s 78B 24. 8. The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal…
Xuarez & Vitela (No. 2)
[2017] FamCAFC 236 Para 2

…given. In the interests of brevity, these reasons should be read in conjunction with our reasons given on 17 July 2017 ( Xuarez & Vitela [2017] FamCAFC 139).…

View all 9 citing cases →

Cases cited in this decision · 12 of 12 shown

XUAREZ & VITELA
[2016] FamCA 159

…[2016] FamCA 159…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 9

…l, and the determination of his applications by an impartial judge or bench of judges. Reference need only be made to Kioa v West (1985) 159 CLR 550, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 to make those points. They do not require further consideration by the High Court.…
Johnson v Johnson
[2000] HCA 48 Para 9

…udge or bench of judges. Reference need only be made to Kioa v West (1985) 159 CLR 550, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 to make those points. They do not require further consideration by the High Court.…
Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd
[1999] FCA 1151 Para 3

…The application of s 78B was considered by French J in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 (“ Berbatis ”). Concerning the obligation to adjourn, French J said: 14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice n…
Nikolic v MGICA Ltd
[1999] FCA 849 Para 3

…to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).…
Dietrich v The Queen
[1992] HCA 57

…LC 92-582 Amrit Lal Narain v Parnell (1986) 9 FCR 479 Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 Dietrich v The Queen (1992) 177 CLR 292 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 Johnson v Joh…
Amrit Lal Narain v Parnell
[1986] FCA 89 Para 1

…The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 486-489. At 489 Burchett J said: Section 78B only operates when the circumstances it postulates are made to appear to the court; it does not operate simply because a…
Kioa v West
[1985] HCA 81

…icial Trustee in Bankruptcy (2000) 205 CLR 337 Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 Johnson v Johnson (2000) 201 CLR 488 Kioa v West (1985) 159 CLR 550 Matsoukatidou v Yarra Ranges Council [2017] VSC 61 R v Bevan Ex parte Elias (1942) 66 CLR 452 Re An Application by the Public Service Ass…
R v Bevan; ex parte Elias and Gordon
[1942] HCA 12 Para 5

…resolution of the Constitutional question “becomes necessary upon the ascertained or ascertained facts of the case…” ( R v Bevan Ex parte Elias (1942) 66 CLR 452 per Williams J at 480). In other words, the facts relied upon are raised bona fide and are sufficient to raise the question ( Hopper v Egg and Egg Pulp Mar…
Macleod v Attorney-General for New South Wales
[1939] HCA 24 Para 5

…er words, the facts relied upon are raised bona fide and are sufficient to raise the question ( Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 per Latham CJ).…
Matsoukatidou v Yarra Ranges Council
[2017] VSC 61 Para 8

…he points said to arise, the appellant relied heavily upon the recent decision of the Victorian Supreme Court in Matsoukatidou v Yarra Ranges Council [2017] VSC 61. The proceedings were a review of an order of a County Court judge who had refused to re-institute appeals from sentence of the Magistrate’s Court of…
[1947] HCA 31
[1947] HCA 31 Para 2

…interpretation.” The phrase “really and substantially” derives from Re An Application by the Public Service Association of New South Wales (1947) 75 CLR 430 at 433 per Williams J.…

Legislation cited in this decision · 5

Charter of Human Rights and Responsibilities Act 2006 (Vic)
24(1), 6(2)(b) 3 mentions (from Para 8)
Judiciary Act 1903 (Cth)
78B 2 mentions (from Para 5)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 7)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)