Cassell & Kolar (No 6)

Case [2023] FedCFamC1F 764


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cassell & Kolar (No 6) [2023] FedCFamC1F 764

File number(s): MLC 4879 of 2019
Judgment of: STRUM J
Date of judgment: 5 September 2023
Catchwords: FAMILY LAW – COURTS AND JUDGES – Where the final hearing has been adjourned part-heard for one year – Where the applicant seeks a recusal of the trial judge on the basis of apprehended bias – Where the applicant’s allegations with regard to apprehended bias are not properly particularised – Test for apprehended bias applied – No apprehended bias found – Where the applicant seeks that the part-heard trial be aborted – In circumstances where no apprehended bias found and no recusal, request to abort trial refused – Where the applicant seeks a “review” of all prior judgments published in the matter – Where the applicant has not appealed or sought leave to appeal, nor leave to extend time to appeal any prior orders – Where the trial judge does not have power to order a “review” of own judgments – Where the represented party, by her litigation guardian, seeks that order for appointment of a litigation guardian be discharged – Where there is no satisfactory further evidence to support discharge – Application dismissed.
Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth) ss 5, 6, 30, 42

Evidence Act 1995 (Cth) s 75

Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4(1), 68LA, s 69ZN, 69ZQ, 79, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 3.12, 3.13, 3.14, 5.08, 10.26, 10.27

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 Core Principles 1, 2, 3, 4, paras 5.24, 5.52–5.61

International Covenant on Civil and Political Rights art 14(1)

Cases cited:

Acheson & Begbie [2023] FedCFamC1F 704

AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Cassell & Kolar (No 2) [2022] FedCFamC1F 984

Cassell & Kolar (No 4) [2023] FedCFamC1F 299

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

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Darley (No 2) [2023] FedCFamC1A 112

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fierro & Fierro (No 4) (2022) FLC 94-120; [2022] FedCFamC1A 208

Johnson vJohnson (1997) FLC 92-764; [1997] FamCA 32

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Keighley & Keighley [2023] FedCFamC1A 146

Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Re JRL; Ex parte CJL (1986)…

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AGLC
Cassell & Kolar (No 6) [2023] FedCFamC1F 764
Case
[2023] FedCFamC1F 764
Decision Date

CaseChat Overview and Summary

Cassell & Kolar (No 6) is a family law case heard in the Family Court of Australia. The case involves an application made by the mother, Ms Cassell, seeking various orders, including the dismissal of certain prior judgments, the discharge of her litigation guardian, and other relief. The case has a history of previous litigation between the parties, with multiple judgments already issued by the court. In this particular application, Ms Cassell sought a review of the prior judgments, the discharge of her litigation guardian, and other relief.

The legal issues before the court were whether the mother had the right to review the prior judgments, whether the court could discharge the litigation guardian, and whether any other relief should be granted. The court had to consider the powers and jurisdiction it had in reviewing its prior judgments, the circumstances under which a litigation guardian could be discharged, and the appropriate course of action regarding the other relief sought by the mother.

The court found that it did not have the power to review its prior judgments, as such a review would essentially be an appeal, which was not within the court's jurisdiction. The court also found that the mother's litigation guardian was properly appointed and that there was no basis for discharging her. Regarding the other relief sought by the mother, the court found that it was not appropriate to grant such relief under the circumstances.

In conclusion, the court dismissed the mother's application in its entirety, finding that none of the relief sought was appropriate or within the court's jurisdiction. The court's decision reaffirms the limits of its powers in reviewing its prior judgments and the importance of following the proper legal processes when seeking to challenge or appeal a court's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, paragraphs 4, 5 and 6 of the mother’s Application will be dismissed.“REVIEW” OF MY PRIOR JUDGMENTS At paragraph 7 of the mother’s Application, she seeks an order that leave be granted to her “to request review of each prior judgment” of mine. Insofar as my prior judgments are concerned, whilst the term “judgment” is not defined in s 4(1) of the Act, a “decree” is defined there as meaning a “decree, judgment or order”, including:an order dismissing an application; ora refusal to make a decree or order. As I endeavoured to explain to the mother’s litigation guardian at the hearing before me on 28 July 2023, I do not have the power to make such an order and, indeed, such an order cannot be made. This aspect of the mother’s Application was not further addressed by her litigation guardian in her written submissions. As I have observed above, the mother or, subsequently, her litigation guardian could have filed a Notice of Appeal (and an application for leave to appeal) in respect of any of my prior judgments. That did not occur. She is now out of time to do so; however, she could still apply to the Full Court for an extension of time. It is not for me to comment upon the merits of any application for an extension of time and for leave to appeal, as well as of any consequent appeal. Paragraph 7 of the mother’s Application will be dismissed.DISCHARGE OF LITIGATION GUARDIAN At paragraph 3 of the mother’s Application, she seeks that paragraph 4 of the orders made on 9 March 2023, namely, that a litigation guardian be appointed for her, be discharged. At paragraph 4 of the mother’s Application, she seeks that paragraph 2 of the orders made on 17 May 2023, namely, that Ms S be appointed as her litigation guardian, be discharged.These aspects of the mother’s Application were not addressed by her litigation guardian in her oral submissions on 28 July 2023 or, explicitly, in her written submissions. However, at paragraph 33 thereof, it is submitted that order I made on 9 March 2023 for the appointment of a litigation guardian “was made in error, as there exists no evidence that [Ms Cassell] is, or has ever been, a person that requires one”. It is also submitted at paragraph 27 that I did not “release” my reasons for judgment until 21 April 2023, thereby preventing her from appealing within time. As I have noted above, that is not correct. My reasons for judgment were delivered ex tempore on 9 March 2023 and were therefore heard by and known to the mother, who appeared that day via Teams video-conference. Whilst my settled reasons (Cassell & Kolar (No 3)) were not provided until 21 April 2023 (albeit that they were not even requested by the mother but, rather, by the father’s lawyers), that did not preclude the mother filing a Notice of Appeal (and an application for leave to appeal) and amending same in due course. Further, she could have applied to the Full Court for an extension of time within which to do so. However, she did not pursue any of these avenues that were open to her.

Ratio Decidendi

Legal Principle Established

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