Cassell & Kolar (No 3)
[2022] FedCFamC1F 1084
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cassell & Kolar (No 3) [2022] FedCFamC1F 1084
File number: MLC 4879 of 2019 Judgment of: STRUM J Date of judgment: 6 December 2022 Catchwords: FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Where the mother seeks leave to file an Application in a Proceeding – Where the proceedings have been extant since 2019 and the mother has filed three interim applications in the course of the proceedings – Where the final hearing of the proceedings is part-heard – Application dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 28 November 2022
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 6 December 2022 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Hargreaves Family Lawyers Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 4879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CASSELL
Applicant
AND: MR KOLAR
Respondent
Q LEGAL
Intervener
INDEPENDENT CHILDREN’S LAWYER
order made by:
STRUM J
DATE OF ORDER:
6 DECEMBER 2022
BY CONSENT, THE COURT ORDERS THAT:
1.The child, X born 2018 (“the child”) spend time and communicate with the mother as follows:
(a)on 24 December 2022 for Christmas from 9.30 am to 11.30 am;
(b)on the child’s birthday from 9.30 am to 11.30 am; and
(c)on the mother’s birthday from 9.30 am to 11.30 am in accordance with the existing requirements for supervision of time or such other supervision arrangements as may be agreed by all parties in writing.
in accordance with the existing requirements for supervision of time or such other supervision arrangements as may be agreed by all parties in writing.
THE COURT ORDERS THAT:
2.The mother’s application for leave to proceed with her Application in a Proceeding filed 29 November 2022 be otherwise dismissed.
3.The costs of the Respondent father of and incidental to the mother’s Application in a Proceeding be reserved to trial.
AND THE COURT NOTES THAT:
A.The final hearing will resume part-heard on 17 April 2023 at 10.00 am with an estimated hearing duration of 8 days.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
C.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
G.This notation is not an order and does not allow parties to apply to Victoria Legal Aid under the Scheme.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
These proceedings concern the future parenting arrangements for the child of the parties’ marriage, X, born in 2018 (“child”), who is turning five years of age, as well as financial matters between the parents. The applicant mother is Ms Cassell (“mother”) and the respondent father is Mr Kolar (“father”).
On the last occasion the matter was listed before me, I made an order requiring the mother to seek leave for any further interim applications. That was done in circumstances where, out of an overabundance of caution, because the mother is self-represented, she might not have been aware of the provisions of paragraph 5.22 of the Central Practice Direction of this Court, which governs the case management of family law matters. That paragraph provides that, other than in urgent circumstances relating to issues of high risk, parties may each file a maximum of two applications in a proceeding without leave. Leave of the court must be sought as part of any relevant interlocutory application.
The mother has filed three Applications in a Proceeding, on 31 August 2021, on 16 November 2021, and on 23 December 2021, that last of which was an Application for a review of orders made by a Senior Judicial Registrar. I was informed from the Bar table by counsel appearing on behalf of the father, and the mother did not dispute, that the mother had previously sought leave to file another interim application on 8 March 2021, but that leave was refused.
The mother now seeks to make a fifth interim application. This proposed application must be viewed in the context of where these proceedings are currently at. The trial of this matter was set down to take place for up to two weeks in August and September 2022. It commenced on 29 August 2022 and ran for three days before being adjourned part-heard. That adjournment was necessitated by reason of the fact that the mother’s counsel, having obtained guidance from the Ethics Committee of the Victorian Bar, sought leave to withdraw and I granted him that leave. I then required the mother’s solicitor at the time, who was acting pursuant to a grant of legal aid under s 102NA of the Family Law Act 1975 (Cth) (“Act”), to appear on her behalf. She then similarly sought leave to withdraw and leave was granted. I then adjourned the further hearing of the trial to enable the mother to secure new legal representation. The matter came before me for mention on 18 November 2022, in the course of which the mother made application for me to recuse myself, primarily based upon her submission that what I had heard over the days prior to the withdrawal of her lawyers could not be unheard, namely, the evidence she gave in the course of cross-examination prior to the trial being adjourned part heard.
Having heard and considered that application, I dismissed it that day and delivered ex tempore reasons. The final hearing, both as to property and parenting matters, was listed to resume on 17 April 2023 for up to eight days.
The mother, in her Application in a Proceeding which she seeks leave to bring, now seeks a variety of interim parenting orders. Strictly, that application is unsupported by any evidence as the mother’s affidavit is not sworn. However, for the purposes of determining the matter today, I have read that affidavit in order to understand the basis thereof. I was reminded by counsel for the father that many of the matters in relation to which the mother now seeks orders are similar to matters that were already previously before me, on 4 February 2022.
Many of the matters the mother now seeks to agitate or, rather, re-agitate, whilst the trial is part-heard, have already been the subject of previous applications by her and/or are the subject of matters that I cannot decide today, because they are matters the subject of contested evidence which must await the outcome of the trial. Insofar as the mother seeks an interim order for equal shared parental responsibility, that is a matter about which she has long complained and sought to agitate. That is a matter that I will need to determine at trial, once I have heard all the evidence, not just of the parents, but also of the respective professional witnesses.
The mother presently has time with the child pursuant to orders made by a Senior Judicial Registrar in March 2021, subject to some minor amendments made during the course of 2021 to govern the time and the communication that the mother is to have with the child. I sought to explain to the mother that she needed to address me regarding the requirements in paragraph 5.22 of the Central Practice Direction, namely, that there were urgent circumstances relating to issues of high risk. The allegations of risk in this case are not new. The mother has long asserted that the child is at risk in the care of the father, with whom she presently lives, on an interim basis. The father similarly asserts that the child is at risk in the mother’s unsupervised care.
One way or the other, those matters will need determined by me after a testing of all the evidence. Many, if not most, of matters the mother now seeks to pursue, are either incapable of being resolved today, because they would require me to determine factual disputes which I simply cannot do today and must await the trial, and/or are not new matters.
Insofar as the mother seeks an updated Family Report, the most recent report is that of Ms R, which was released on 28 July 2022, ahead of the trial. Whilst the mother (as a litigant in person) makes complaint about that report, she has cherry-picked aspects of the report that she perceives may support her case. However, viewed as a whole, I disagree with her complaints. At paragraph 82 of the most recent Family Report, to which counsel for the father referred me, Ms R says:
The primary risk to [X] identified is that [Ms Cassell’s] mental health may contribute to behaviours, and or unsubstantiated allegations that will consequently impact the care of [X] and place her at risk. …
The mother disputes the extent of the mental health difficulties with which she has been assessed as suffering. She relies upon her treating psychologist who takes a different view but, then, he is her treating psychologist, with whom she has an ongoing relationship, and not an independent expert.
Ms R continues at [82]:
The focus of any risk to [X] has been centred upon [Ms Cassell’s] mental health and any potential diagnoses of personality dysfunction that would in turn compromise [X’s] development and fuel behaviours that are damaging to [X], such as those concerns previously raised throughout the course of these proceedings. These have included, [Ms Cassell’s] unsubstantiated allegations of [X] consistently displaying concerning behaviour when she returns from her father’s care, [Dr E’s] observations of an enmeshed relationship where the mother’s needs cannot be separated from those of the child and a lack of developmental attuenement to [X’s] needs. In addition, concerns raised by [Mr Kolar] of [X] been taken to numerous medical professionals for examination. DFFH have not substantiated these concerns and do not intend to take further action or have any further involvement with the family. Furthermore, to the above assertions there is now a query as to whether [Ms Cassell] is compromised in her parenting to such a degree that she cannot safely spend time with [X] without the need for supervision. [Mr Kolar] reports that [Ms Cassell] will confuse [X] by saying things that are not true or contradictory to [X’s] experiences. That [X] is placed in a precarious position that impacts her sense of reality and capacity to develop her sense of self.
Nothing that the mother has put to me, in her submissions in support of her application for leave to issue a further interim application, in any way allays the concerns raised by the Family Report writer.
I am not bound by the recommendations of the Family Report writer. Her evidence will be tested at trial and I will make findings. However, at this interlocutory stage of the proceedings, the only objective, independent evidence that I have is those of professionals such as Dr E, who prepared three previous family reports in this matter, and Ms R. The mother’s submissions today, ignore the concerns regarding her mental health and the state thereof.
It may be, in the fullness of time, when I have heard all of the evidence tested and I have observed the parties in the witness box, that I come to a conclusion that satisfies the mother or, at least, partially so. I cannot do so today. I am cognisant of the fact that, contrary to the mother’s proposed application, which seeks to progress to unsupervised time with the child before the resumption of the trial, Ms R posits two scenarios at [103] and [104] of her report. The first scenario, addressed at [103], is:
If the Court determines there is unacceptable risk to [X] from [Ms Cassell] than [sic] there is supervised spend time monthly, video face time fortnightly and parental responsibility rests with her primary parent.
The other scenario, addressed at [104], is:
If the Court determines there is low risk to [X] in the care of [Ms Cassell] than professionally supervised time occur weekly and upon receipt of a favourable supervision report this progress to unsupervised time weekly and incrementally increase each month until [X] is spending substantial time with [Ms Cassell]. …
On either view, the as yet untested evidence of the Family Report writer is that, at least for the short term, there should be supervision. Whether it continues or not into the longer term will depend upon my findings as to whether an unacceptable risk exists.
Prima facie, the recommendation in [104] appears somewhat problematic because it seems to suggest a delegation of the determination of if and when the child’s time with the mother is to progress to unsupervised time is to rest with a supervisor. Subject to any submissions that may be made to me at trial, and I put the parties on notice that submissions on this will be required, I do not see how I could properly delegate my power to a supervisor to determine if and when there is to be a progress from supervised to unsupervised time, if that is what I ultimately order.
Having gone through the mother’s proposed application with her, counsel for the father and the Independent Children’s Lawyer, counsel for the father identified for me the matters that are said by the mother to be new. Insofar as they are new matters, their determination must await the completion of the trial. They include whether or not there should be equal shared parental responsibility and, if so, how it is to be exercised, whether or not there is to be supervised time, and matters of like nature. Similarly, in relation to schooling and extracurricular activities, there really is no evidence (even if the mother’s affidavit were sworn) upon which I could proceed to determine those issues today, nor any evidence which would meet the required threshold of urgency and high risk.
Nevertheless, I am cognisant, as I have said above, that the mother is a litigant in person. Of the matters raised by the mother in her proposed application, the only one that might reach the threshold of urgency, albeit not high risk, is that regarding the mother’s time with the child on or around Christmas Day, on the child’s birthday and on the mother’s birthday, because all three occasions fall before the trial resumes before me. However, from what I have been told, it appears that these matters may be resolved consent. The father’s position is that the mother can spend time with the child from 9.30am to 11.30 am on Christmas Eve, on the child’s birthday and on the mother’s birthday, subject to the existing supervision arrangements or as otherwise agreed in writing between all parties.
Orders will be made, by consent, to that effect and I otherwise dismiss the mother’s application for leave to file yet another interlocutory application in these proceedings. Costs will be reserved.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 6 March 2023
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