Cassell & Kolar (No 5)

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.