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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassell & Kolar (No 5)

Details

AGLC: Cassell & Kolar (No 5) [2023] FedCFamC1F 478
Case: [2023] FedCFamC1F 478
Decision Date

CaseChat Overview and Summary

In the matter of Cassell & Kolar (No 5), the Federal Circuit and Family Court of Australia (Division 1) was tasked with deciding whether to appoint a litigation guardian for the applicant mother in ongoing family law proceedings. The dispute between Ms Cassell and Mr Kolar, which began in 2019, has consumed a significant portion of their child's life. The court had previously ordered a litigation guardian for the mother due to concerns about her mental health and capacity to manage the proceedings. The current issue before the court was whether to confirm the appointment of a proposed litigation guardian, Ms S, who had filed an affidavit confirming her eligibility under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The court considered the legal framework, including the Federal Circuit and Family Court of Australia Act, the Family Law Act, and the relevant court rules and practice directions. It noted the obligations under the court’s Central Practice Direction – Family Law Case Management, particularly the core principles related to the safety of children and efficient resolution of disputes. The court highlighted the importance of appointing a litigation guardian to ensure the mother’s capacity to effectively participate in the proceedings.

Ms S’s application for appointment as litigation guardian was unopposed by the father and the Independent Children’s Lawyer. The court accepted Ms S’s affidavit, which confirmed her eligibility and willingness to act as the litigation guardian. The mother had not sought to appeal the earlier order for a litigation guardian, nor had she applied to discharge that order. Given that the appointment was unopposed and in the interest of the child's welfare, the court decided to appoint Ms S as the litigation guardian for the mother.

The court further ordered that the final hearing, originally scheduled for August and September 2022, be rescheduled to commence on 18 September 2023, with an estimated duration of five days. The court also mandated that Ms S file a Notice of Address for Service within seven days and obtain the transcripts of previous hearings. Any applications for recusal were to be filed by 7 June 2023. The court noted that if family violence provisions applied, unrepresented parties would not be permitted to cross-examine personally and could apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for representation.

In summary, the court granted the application for Ms S to be appointed as the litigation guardian for the mother and set a new date for the final hearing.

Orders