Xuarez & Vitela (No 2)

Case [2017] FamCA 1028

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA (NO 2) [2018] FamCA 1028
FAMILY LAW – PRACTICE AND PROCEDURE – Where the Applicant has filed a Notice of Constitutional Matter -–Where the notice is incompetent and almost certainly frivolous – Where the Applicant seeks a stay of previous orders made – Where the applicant seeks an adjournment of the final hearing – Applications dismissed.
Judiciary Act 1903 (Cth)
Xuarez & Vitela [2017] FamCAFC 139
APPLICANT: Mr Xuarez
RESPONDENT: Ms Vitela
FILE NUMBER: BRC 7312 of 2007
DATE DELIVERED: 30 November 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Carew J
HEARING DATE: 30 November 2017

REPRESENTATION

THE APPLICANT: Self-Represented
COUNSEL FOR THE RESPONDENT: Ms Bertone
SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Lawyers

Orders

  1. That the Application in a Case filed by the Applicant on 16 November 2017, seeking a stay of the Order made on 29 September 2017, be dismissed.

  2. That the Application in a Case filed by the Applicant on 16 November 2017, seeking an adjournment of the substantive proceedings, be dismissed.

  3. That judgment be reserved in relation to the competing substantive applications

    (i)

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).

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. On 27 September 2017 I listed this matter for a final hearing on 30 November 2017.

  2. Mr Xuarez filed several interim applications which were listed for hearing on 27 November 2017. Two applications were dealt with on that date and the remaining applications were adjourned to 30 November 2017, following a telephone disconnection between the Court and Mr Xuarez. On 27 November 2017 I dismissed Mr Xuarez’s application to appear today by telephone. Mr Xuarez has failed to appear today.

  3. I am satisfied that Mr Xuarez was aware that he was required to appear at the hearing today because he has filed an appeal against the order made on 27 November 2017 dismissing his application to attend at the final hearing today by telephone and requiring the parties to attend personally.

  4. The remaining interim applications filed by the applicant that are before the Court today are:

    a)An Application in a Case filed on 16 November 2017 to stay the Order made on 27 September 2017; and

    b)An Application in a Case filed on 16 November 2017 for an adjournment of the final proceedings.

Application for a Stay

  1. The submissions of Ms Bertone, counsel for the mother, in relation to the stay application were that it should be dismissed because Mr Xuarez was not here to prosecute his application and the application is incompetent as there are no operative orders that he is seeking to be…

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Details
AGLC
Xuarez & Vitela (No 2) [2018] FamCA 1028
Case
[2017] FamCA 1028
Decision Date

CaseChat Overview and Summary

In this matter before Carew J of the Family Court of Australia, the applicant, Mr Xuarez, sought a stay of an order made on 29 September 2017 and an adjournment of substantive proceedings. The respondent and the Independent Children's Lawyer opposed these applications.

The court was required to determine whether Mr Xuarez's applications had merit, specifically whether the proceedings involved a constitutional matter or the interpretation of the Constitution, which would necessitate notification under section 78B of the Judiciary Act 1903 (Cth). The court also considered whether the applicant had established grounds for a stay or an adjournment.

Carew J dismissed the applications for a stay and an adjournment, finding that Mr Xuarez had not provided any factual basis to support his claims that the proceedings involved a constitutional matter. The judge adopted the reasoning of Ryan J, who had previously found that the applicant's submissions regarding a constitutional issue, particularly concerning a right to legal representation at public expense, were not supported by Australian law or the relevant Victorian legislation. The judge concluded that the notice was incompetent and frivolous, and that the applicant's right to a fair hearing and an impartial judge did not require further consideration in the context of a constitutional matter.

Judgment was reserved in relation to the competing substantive applications.

Orders

Orders of the court

1.

That the Application in a Case filed by the Applicant on 16 November 2017, seeking a stay of the Order made on 29 September 2017, be dismissed.

2.

That the Application in a Case filed by the Applicant on 16 November 2017, seeking an adjournment of the substantive proceedings, be dismissed.

3.

That judgment be reserved in relation to the competing substantive applications

(i)

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

Background

Background to the litigation

Mr Xuarez is not here to prosecute his application before me, but I assume that if he were, he would make submissions similar to those that he made to the Full Court which were summarised by the Full Court as follows:32. 14. As to the factual matters in relation to which the constitutional question was said to arise the appellant said: 33. Facts showing that section 78B of the Judiciary Act 1903 applies34. 1. The nature of the proceedings and the particular facts giving rise to the Constitutional issues described at 1 to 8 above are set out in the Transcript of Proceedings before Justice Forrest dated 14 March 2016, Appeal Books Volumes 1 & 2 dated 20 February 2017, Summary of Arguments for the Appellant dated 20 April 2017 and all documents related to the proceedings BRC7312/2007 from 2007 to date (Court Documents). 35. 2. The Family Court of Australia is a Constitutional Matter.36. 3. The Family Court of Australia is a Constitutional Issue/Matter for the Attorneys-General for the Commonwealth and all States and Territories.37. 4. The Circumstances in this Notice of a Constitutional Matter is issued are set out in all documents above mentioned at 1. 38. (As per original document) There is no evidence before me that provides any factual basis for the content of the notice filed by Mr Xuarez in the proceedings before me. I adopt, with respect, the reasons, of Ryan J:[2][2] Xuarez & Vitela [2017] FamCAFC 13940. 15. By reference to the documents referred to in paragraph 3 as they relate to the hearing before the primary judge, it is said the judge was biased, misapplied the rules concerning dismissal for want of prosecution, and that the appellant did not have legal representation before the primary judge. Nothing raised in the notice or before us today justified us needing to review all documents filed in the proceedings from 2007 to date. Indeed, the suggestion that this might be done lends support to the proposition that the notice is frivolous. 41. …42. 19. Turning then, to the question of whether the notice establishes a matter arising under the constitution or its interpretation. This morning the appellant emphasised his right to have legal representation at the public expense. In his list of authorities the appellant relied on Dietrich v The Queen (1992) 177 CLR 292 (“Dietrich”). That is a case concerned with representation in criminal proceedings, in relation to which the state has an onus to discharge. But the point of Dietrich is that the High Court made it clear that the common law of Australia does not recognise the right of an accused to be provided with counsel at the public expense. Of course, Dietrich went on to point out that courts have the power to stay criminal proceedings that will result in an unfair trial. Dietrich does not lend support to the appellant’s argument that there is a constitutional right to legal representation in proceedings arising under the Family Law Act 1975 (Cth).43. 20. In further support of the 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 Victoria which had been struck out. Justice Bell determined that the County Court judge who heard the application did not give the applicants “such advice and assistance as would ensure their effective participation in the hearing and equality of arms with the legally represented party” ([176]) and thereby breached ss 6(2)(b) and 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This Victorian legislation does not apply to the case at hand. In any event, Bell J did not say that the applicants had a right to legal representation at the expense of the public. In my view, that decision does not assist the appellant in identifying a constitutional matter which would engage s 78B of the Judiciary Act. 44. 21. It is uncontroversial that the appellant has the right to a fair hearing, both at first instance and on appeal, 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. 45. 22. In short, I agree with the submission of counsel for the respondent and for the ICL that the notice does not identify a matter arising under the Constitution or involving its interpretation, nor indeed do the facts of the matter. In my view, the notice is incompetent and almost certainly frivolous.

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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