Xuarez & Vitela (No 2)

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.