Abadi and Sokulsky

[2020] FamCA 64

FAMILY COURT OF AUSTRALIA

ABADI & SOKULSKY [2020] FamCA 64

FAMILY LAW – PRACTICE AND PROCEDURE – consideration of discretionary order under s 102NA – Application in a Case for discharge of Independent Children’s Lawyer – Application in a Case seeking subpoena for expert to appear in person – Application for production of Federal Circuit Court file – Application for adjournment of trial.

Family Law Act 1975 (Cth) s 102NA, 102NB

APPLICANT: Mr Abadi

RESPONDENT: Ms Sokulsky

INDEPENDENT CHILDREN’S LAWYER: Ms Orcyzkowski

FILE NUMBER: SYC 3215 of 2010

DATE DELIVERED: 4 February 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bolan Legal Family Lawyers

Orders

1. I decline to make an order under s 102NA.

2. The Application in a Case filed on 31 January 2020 for the discharge of the Independent Children’s Lawyer is refused and the Application is dismissed.

3. The Application in a Case seeking a subpoena to issue for Dr C to appear in person at the trial of this matter is refused. 

4. The Application for the Federal Circuit Court file of Aluru & Sokulsky CAC746/2016 is refused and the Application is dismissed.

5. The Application for Adjournment of the trial is refused and the Application is 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 Abadi & Sokulsky 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 3215 of 2010

Mr Abadi

Applicant

And

Ms Sokulsky

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Section 102NA

1. Mr Abadi has recently become unrepresented having, for the preparation of the matter for trial, been represented by a legal firm. 

2. In the material filed on behalf of the Mother there are a series of what have been described as historical, and what have also been described as serious, allegations of family violence made against Mr Abadi.  They include acts of physical violence, acts of intimidation and acts of stalking.  The Mother has described herself as having behaved so under duress imposed by Mr Abadi to the extent that she says that she paid the sum of $70,000 towards his payment of debt.  It may be taken that the allegations of family violence are serious.

3. Under those circumstances s 102NA of the Family Law Act 1975 (Cth) becomes applicable.

4. I am advised by Ms Sokulsky’s counsel, and accept, that this is not a case that attracts the mandatory operation of s 102NA, as the conditions at s 102NA(1)(c),(i), (ii) and (iii) are not met.

5. However, I am required to consider, as a matter of discretion, whether or not I am to apply s 102NA(2) to these proceedings because of the family violence that is alleged.

6. Mr Harper of counsel correctly articulated the underlying purpose of s 102NA, which in large part is directed to the protection of a victim or alleged victim of family violence from re-traumatisation and from the pressures which flow from being directly cross-examined by a person who is alleged to have perpetrated family violence upon them. That includes amongst the effects of that pressure the potential for the integrity of the evidence to be undermined due to the particular pressure being placed upon that person as a witness.

7. The nature of the allegations that are made against Mr Abadi, although I note that they are only allegations at this stage, speak strongly towards the protective purpose and the protection of the integrity of evidence as pointing towards an order being made. 

8. The Independent Children’s Lawyer’s points towards those pressures too as being matters of concern. 

9. Mr Abadi points towards potential undermining of the integrity of the evidence as to justify an order being made. 

10. What points in the other direction in this particular case, and points in the other direction sufficiently as to mean that a discretionary order should not be made, is the position taken by Ms Sokulsky.   I am advised by her counsel, who has raised the matter with Ms Sokulsky and advises that he has taken instructions directly on the point, that although Ms Sokulsky concedes that she will be the subject of some pressure and that it will be at least uncomfortable for her to give evidence if cross-examined directly by Mr Abadi, that that is a path that she would choose to take in these particular proceedings.  In part, it seems that she chooses to take that path due to the spectre of having the proceedings adjourned when they are already so severely dated. 

11. The position of Ms Sokulsky appears to me, given the context in which it has been given by her counsel, to be a well thought out and carefully considered position.

12. On that basis, and bearing in mind the largely protective concerns addressed by s 102NA on the basis of that representation made by counsel, and on the basis that in the ordinary course the Court is in a position to sufficiently control the questioning, particularly where a party is legally represented, so as to combat the undermining of the integrity of the evidence, I decline to make an order under s 102NA.

13. That brings into play the application of s 102NB.  Counsel for Ms Sokulsky seeks no orders under s 102NB but may articulate a different position later in the proceedings on the basis again that Ms Sokulsky is legally represented and that that representation points to the capacity of the Court to control the manner of questioning.

14. I am satisfied that at this stage no particular order should be made under s 102NB although that matter may be revisited during the conduct of the proceedings. 

Application for the discharge of the Independent Children’s Lawyer

1. By an Application in a Case filed 31 January 2020 Mr Abadi seeks the discharge of Ms Orcyzkowski as the Independent Children’s Lawyer. 

2. It is an application made on the cusp of the trial.  It is reliant upon circumstances set out in the affidavit in support of that Application in a Case and oral submissions made by Mr Abadi before the Court.  The oral submissions and affidavit are, it appears, designed to suggest that there is some influence exercised by Mr Routh, the solicitor for Ms Sokulsky over Ms Orcyzkowski.  The basis put forward for such a proposition is entirely fanciful and does not support a discharge of the Independent Children’s Lawyer. 

3. Secondly, there are criticisms of the Independent Children’s Lawyer in relation to the issue of subpoenas.

4. At present there is insufficient information to point to a failure to issue a subpoena directed to Dr C, who engaged in therapy with the child, as such as to justify the discharge of Independent Children’s Lawyer.

5. The application to discharge Ms Orcyzkowski is refused. 

Subpoena to Dr C to appear in person

1. By an Application in a Case Mr Abadi seeks that leave be granted for a subpoena to issue for Dr C to appear in person to give evidence in Court for the final hearing, which is due to commence today.  Even without assuming the commencement of the trial today it may be observed that the parties have had months, if not years, to ready this matter for trial. 

2. The leave to issue a subpoena directed to Dr C should not be granted at this stage of the proceedings, there being insufficient explanation as to why steps had not been taken in the months leading up to this point.

Request for Federal Circuit Court file

1. In these proceedings the Father has sought what I take to be a request to be made, by this Court, of the Federal Circuit Court for the files of Aluru & Sokulsky CAC746/2016 to be made available to the Court for the final hearing of the matter. 

2. As articulated in exchanges with counsel for the Mother it would appear to be on the cards that that file would contain material of relevance to these proceedings, although it may be assumed that it is not known what material might be of relevance at this stage.  That there may be material of relevance, as raised by the exchanges between Mr Abadi and the Family Report Writer.  He alleges that the Mother, Ms Sokulsky, has been violent not only to their child, but also to the children of the relationship between herself and Mr Aluru. 

3. Accordingly, it may be seen that the file, or at least it is on the cards that the file, contains material of relevance to a determination of whether or not the Mother poses a risk of harm to the child the subject of these proceedings by virtue of her behaviour outlined potentially in those other proceedings towards that child or the other of her children. 

4. However, this is an application again made on the cusp of the trial, a trial which has been on and off being prepared for since 2016.  This is a trial for which procedural directions were given many months ago and in which there is no explanation as to why this was not pursued at a much earlier date. 

5. Under those circumstances, and due to the threat posed to the conduct of the trial by acceding to the application, and noting the matter raised by counsel for Ms Sokulsky that the disclosure of information regarding the child’s siblings is a matter generally opposed by the child in what she says to the Family Consultant of her fears of those siblings being embroiled in the proceedings, noting that I am required in child related proceedings to take note of the impact of the proceedings on the child, I decline to make the request of the Federal Circuit Court for the production of those records.

Request for adjournment

1. In these proceedings application for adjournment is made by the Father.  That application for adjournment occurs in the context of the Father no longer having legal representation. 

2. The circumstances of a party not having legal representation at a trial may form a very cogent reason for the adjournment of trial proceedings.  This is particularly the case where the party has lost that legal representation through no fault of their own shortly prior to the commencement of the trial or the scheduled commencement of the trial.  That may occur under circumstances where there is a sudden termination of a grant of legal assistance by the Legal Aid Commission. 

3. Here, Mr Abadi's legal representative was funded by the Legal Aid Commission and I am informed by Mr Abadi the grant was terminated last week.  The termination of that grant resulted in Mr Abadi filing an Application in a Case seeking a number of remedies, but in particular in relation to that remedy seeking the adjournment of the trial proceedings. 

4. However, Mr Abadi has explained to me that the circumstances of the termination of that grant of aid are effectively at the hands of Mr Abadi himself.  He informs me that he was requested by the Legal Aid Commission to supply financial documents, declined to do so and indicated to them that he was prepared to represent himself.

5. Accordingly, his position of at a late stage being without legal representation appears to be a matter in his own hands, at his own choice.  That does not pose a compelling or strong reason to now vacate a trial which has been under preparation for many months. 

6. Mr Abadi also sought the adjournment of the trial so that he can pursue a number of other enquiries.  I have dealt with each of those enquiries by orders dismissing the various applications that Mr Abadi made in the case late last week.  The disposal of those Applications in a Case mean that they do not present now as reasons for the vacating of the trial.

7. It may also be observed that the sudden unrepresented status of Mr Abadi could, because the operation of s 102NA of the Act have also provided a reason for the adjournment of the trial. However, because the manner in which that has been disposed of, namely that no discretionary order has been made prohibiting him from cross-examining Ms Sokulsky in person, such an eventuality does not arise.

8. On balance, despite the difficulties that Mr Abadi will now face being a self-represented litigant, taking into account the circumstances of how that comes to be the case so late in the proceeding, taking into account the long preparation of this trial, taking into account the previously unsuccessful attempts to prepare the matter for trial, taking into account that family reports have now been prepared on a number of occasions, the application for adjournment of the trial is refused and the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 February 2020.

Associate: 

Date:  7 February 2020