Cassell & Kolar (No 5)

[2023] FedCFamC1F 478

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cassell & Kolar (No 5) [2023] FedCFamC1F 478

File number(s):

MLC 4879 of 2019

Judgment of:

STRUM J

Date of judgment:

17 May 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – LITIGATION GUARDIAN – Where an order for a litigation guardian was previously made – Affidavit confirming eligibility to be a litigation guardian pursuant to r 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 filed – Proposed litigation guardian not opposed – Litigation guardian appointed.

Legislation:

Federal Circuit and Family Court of Australia Act (Cth)

Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.14 and r 3.15

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021 Pt 3, pars 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8

Division:

Division 1 First Instance

Number of paragraphs:

14

Date of hearing:

17 May 2023

Place:

Melbourne

The Applicant:

Litigant 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

INDEPENDENT CHILDREN’S LAWYER

order made by:	STRUM J
DATE OF ORDER:	17 MAY 2023

THE COURT ORDERS THAT:

1.All extant applications be listed before the Honourable Justice Strum for final hearing to resume part heard commencing on 18 September 2023 at 10.00 am (with an estimated hearing of 5 days).

2.On the Application in a Proceeding filed by Ms S on 9 May 2023 pursuant to Notation D of the orders made on 11 April 2023 by the Senior Judicial Registrar, Ms S be appointed as the litigation guardian on behalf of the Applicant mother.

3.Ms S file and serve a Notice of Address for Service within 7 days.

4.The transcript of the hearings on 9 March 2023, 11 April 2023 and 17 May 2023 be obtained by the Court and provided to the parties as soon as practicable.

5.Any application for recusal be filed and served on or before 7 June 2023.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 fact sheet attached hereto and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.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.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.

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 the pseudonym Cassell & Kolar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE

STRUM J:

1. These proceedings have been pending in this Court since 2019. As counsel for the respondent father (“father”) has rightly observed, they have occupied four-fifths of the child’s life. The proceedings were listed for a trial with an estimated duration of 10 days in August and September 2022. The proceedings commenced on 28 August 2022, and by 31 August 2022, they were adjourned part-heard because the mother’s barrister, appointed pursuant to an order I made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“Act”) earlier in 2022, consulted with the Ethics Committee of the Victorian Bar and then sought, and was granted, leave to withdraw from the proceedings. That was not opposed by his client, the applicant mother (“mother”).

2. In circumstances where the mother thereafter continued to be represented by her then solicitor, Ms P, who had not hitherto been present at Court to instruct counsel (about which I make no criticism), I required Ms P to appear at Court later that day. She eventually did appear at Court, albeit reluctantly (about which I was critical), and then similarly sought leave to withdraw, which was, in the circumstances, granted. Whilst there was initially some dispute as to whether or not the trial should continue with the mother self-represented, albeit labouring under the restrictions of s 102NA, in the face of an application by the mother for an adjournment, ultimately, that was not opposed by either counsel for the father or counsel for the Independent Children’s Lawyer.

3. The matter has now been part-heard since the end of August 2022. I agree with the submissions made by counsel for the father, in relation to the resumption of the trial, as to the obligations of the Court and the parties, both under the Federal Circuit and Family Court of Australia Act 2021 (Cth) as well as the Court’s Central Practice Direction – Family Law Case Management. Counsel made specific reference to the Core Principles set out in that Practice Direction, including Core Principles 1, 2, 3 and 4 which state:

   Core principle 1 – Risk

   3.2The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including through risk screening, such as allegations of family violence, are essential elements of all case management.

   Core principle 2 – Parties’, lawyers’ and the Court’s obligations and overarching purpose

   3.3The overarching purpose to be achieved is to facilitate the just resolution of disputes:

   a.        according to law;

   b.        and as quickly, inexpensively and efficiently as possible.

   3.4      The overarching purpose includes the following objectives:

   a.the just determination of all proceedings before the Court;

   b.the efficient use of the judicial and administrative resources available for the purposes of the Court;

   c.the efficient disposal of the Court’s overall caseload;

   d.the disposal of all proceedings in a timely manner;

   e.the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.

   3.5This Central Practice Direction and the Family Law Rules must be interpreted and applied in the way that best promotes the Court’s overarching purpose and prioritises the best interests of children.

   Core principle 3 – Efficient and effective use of resources

   3.6The Court’s judicial, registrar and Court Child Expert resources are to be allocated and used efficiently to achieve the overarching purpose in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.

   Core principle 4 – Approach to case management

   3.7      Effective case management of all cases relies on:

   a.consistent approach to the case management of like cases;

   b.early triaging of matters to an appropriate case pathway, including assessment of risk; and

   c.the prioritisation of both internal and external Dispute Resolution, including private mediation, Family Dispute Resolution (FDR), Conciliation Conferences and arbitration in property disputes for as many appropriate cases as possible.

   3.8Immediately after filing an Initiating Application or Response to Initiating Application, if parenting orders are sought, each party will be invited to complete the Lighthouse online risk screen in order to receive safety planning, service referrals and appropriate case management.

4. When the matter came before me on 9 March 2023, based upon a document prepared by the mother’s own treating psychologist, it was abundantly clear to me, on the face of that document, which emanated not from the father’s camp or the Independent Children’s Lawyer’s camp, but from the mother’s own camp that, on her own material, she was a person who required the appointment of a litigation guardian, and I made such an order.

5. The only order I made that day that is germane for present purposes is Order 4, which provided that, pursuant to r 3.15(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”), a litigation guardian be appointed for the mother as soon as practicable, followed by a request directed to the Attorney-General of the Commonwealth to appoint a person to be the litigation guardian in satisfaction of the requirements of r 3.14. That was in circumstances where there was no one else readily apparent that day to fulfil that role. The operative part was not the request but the order itself; the request was not was (and could not be) in any way binding on the Attorney-General or, indeed, upon any other person.

6. I then adjourned the proceedings to 24 March 2023 for the purpose of apprising the Court as to the progress of the matter. That hearing was then vacated and the matter then came before a Senior Judicial Registrar on 11 April 2023, on which date the mother appeared for herself, notwithstanding the order that I previously made. All extant applications were then listed for mention before me this day, and, inter alia, the following notations were made:

   A.The Final Hearing before His Honour Justice Strum, commencing on 17 April 2023, is vacated.

   B.The Court will give consideration to striking out or otherwise disposing of all extant applications at the next Court event.

7. I am of the view that, in circumstances where there is an extant order for the appointment of a litigation guardian for the mother, I could not, in fairness to the mother, deal with the issue of striking out the proceedings today.

8. Notation C of the Senior Judicial Registrar’s orders then stated that:

   C.During the adjourned period the Applicant will give consideration to the following options:

   (a)Filing an affidavit from a proposed litigations guardian in compliance with Rules 3.14 and 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules; or

   (b)Making an application to discharge the order seeking the appointment of the litigation guardian and retaining new legal representation.

9. Turning to the second of those matters, there is no application before me today to discharge the order that I made on 9 March 2023 for the appointment of a litigation guardian, nor has the mother sought leave to appeal that order. She submitted that somehow, by reason of the order I had made, she was precluded from so doing. I do not understand how that submission could be made. If she wished to appeal the order, she could have sought leave to do so. She is now out of time; however, she can seek an extension of time. Whether or not an extension of time and leave would granted is another matter.

10. Insofar as it was noted that the mother would give consideration to filing an affidavit from a proposed litigation guardian, I have before me today an Application in a Proceeding filed on 9 May 2023 by Ms S on behalf of the mother. She seeks one order, namely, that she be appointed as litigation guardian for the mother in these proceedings. Whilst Ms S is not present in Court today and should have been present in Court today, it being her application, I will not take that matter further. Neither the father nor the Independent Children’s Lawyer oppose the appointment of Ms S. In her affidavit filed 9 May 2023, Ms S relevantly she deposes that she meets the requirements of r 3.14 of the Rules, in that she is over the age of 18; she has no interest in this proceeding adverse to that of the mother; and she can fairly and competently conduct the proceeding for the mother. The father and the Independent Children’s Lawyer do not contend otherwise. Ms S also deposes that she is in considerable daily contact and communication with the mother and that, if the Court remains of the opinion that the mother requires a litigation guardian, she consents to being appointed to that role. She further deposes that she has made significant inquiries to gain an understanding of the expectations of her if appointed. In circumstances where that application is unopposed, I shall therefore order that Ms S be appointed as the mother’s litigation guardian and that she file a Notice of Address for Service within seven days.

11. Ms S opines (albeit without qualification) that the mother consistently presents, and always had presented, to her as being sound of mind and capable of adequately conducting or giving adequate instructions for the conduct of her own proceedings. Her usual occupation, as disclosed in her affidavit, is that of a homemaker. Insofar as that may be her opinion, and even if genuinely so, I give it little weight, especially given the speculative nature thereof. She further deposes to having spoken with Mr D, the mother’s long-term treating psychologist, to ensure her perception of the mother’s capacity is correct from his clinical perspective, and she attaches a document styled ‘Psychologist Update’ by Mr D, dated 5 May 2023. When I compare that with the report that he previously prepared, dated 1 March 2023, upon the basis of which I made the order for the appointment of a litigation guardian, they stand in stark contrast one to the other. It is concerning that his opinion on 1 March 2023 does not correlate with his opinion on 5 May 2023. There is no indication in his latter report that there has been any notable change in the mother’s condition between 1 March and 5 May 2023, nor does he point out any error that he says he made in that earlier report. In summary, he described in his report of 1 March 2023 that, in his professional opinion, the mother’s mental state then was such that she was in a very vulnerable position. He referred to it being evident that her overall mental health had gradually declined in the preceding months due to significant ongoing pressures she had been enduring. He said that whilst she is normally able to manage her fundamental self‑care requirements, she was struggling to do so at that time. Further, it was clear, in his professional assessment, that she was having a type of nervous breakdown which included significant anxiety with connected panic attacks and that, whilst she had historically been a very resilient individual, he was concerned about her current wellbeing. In my view, the only way those two starkly opposing opinions, separated in time by only two months, can be clarified will be when Mr D is cross-examined at trial, he being a witness in the mother’s case.

12. The mother has made it abundantly clear to me that whilst the s 102NA order was made on a discretionary basis, even if it remained a discretionary matter, she would not seek that it be discharged, and at this juncture I would be reluctant to discharge it of Court’s own motion. However, in any event, the mother has told me, albeit from the bar table, that she has brought an application to extend an intervention order.

13. These proceedings have been pending for far too long. It is the welfare of a child which must be, and is, the paramount consideration, not that of one or either of her parents. In my view, it is inimical to the child’s welfare to be embroiled in litigation for the length of time that these proceedings have been pending. Indeed, this child knows little of life other than under the spectre of litigation between her parents, albeit that she is only 5 years of age. In circumstances where I adjourned the trial in August 2023, on the mother’s application, in order to enable her to secure new legal representation, in my view she has had more than ample opportunity to do that.

14. Insofar as the mother has foreshadowed an application for me to recuse myself for apprehended bias, there is no such application before the Court today. If Ms S wishes to make such application, on her behalf, I will carefully listen to, consider and determine it. However, I note that the mother has already made one such application last year, which was unsuccessful, so any further such application will need to be based upon matters that have arisen since her previous application was dismissed, and not on matters that pre-date it, which have already been the subject of a determination by me.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       16 June 2023