Cassell & Kolar (No 7)
[2023] FedCFamC1F 886
•18 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cassell & Kolar (No 7) [2023] FedCFamC1F 886
File number(s): MLC 4879 of 2019 Judgment of: STRUM J Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the final hearing has been adjourned part-heard for over one year – Where the applicant mother, through her litigation guardian, filed an Application in a Proceeding seeking to adjourn the recommencement of the final hearing and to be granted leave to appeal the order appointing a litigation guardian – Where the primary judge does not have power to grant leave to appeal – Where the mother seeks that the trial be adjourned in circumstances where she is unrepresented and she contends the evidence before the Court is out of date – Where legal representation is a privilege, not a right – Where the mother has had in excess of one year to update her evidence and prepare her case – Where is it not in the best interests of the child to further adjourn the matter – Application dismissed. Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ketteman v Hansel Properties Ltd [1987] AC 189; [1988] 1 All ER 38; [1987] 2 WLR 312
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 18 September 2023 Place: Melbourne The Applicant: Appeared via litigation guardian 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 The Intervenor: Excused from appearing Counsel for the non-party subpoena objectors: Mr Tesoriero Solicitor for the non-party subpoena objectors: Elsum Family Law ORDERS
MLC 4879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CASSELL
Applicant
AND: MR KOLAR
Respondent
Q LEGAL
Intervenor
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The applicant mother’s Application in a Proceeding, filed by her Litigation Guardian on 13 September 2023, be dismissed.
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 TEMPORESTRUM J:
These reasons for judgment are to be read, for context, in conjunction with my previous reasons delivered in this matter.
On 31 August 2022, the trial of these proceedings was adjourned part heard, after three days, in circumstances where the applicant mother lost legal representation by both her barrister and her solicitor. She sought an adjournment that day which counsel for the respondent father reluctantly conceded.
On 18 November 2022, I relisted the proceedings to 17 April 2023. That trial date was subsequently vacated due to, inter alia, an order having been made by me that a litigation guardian be appointed for the mother.
On 17 May 2023, I acceded to an application by Ms S for her appointment as the mother’s litigation guardian and I relisted the part-heard trial to resume today.
On 5 September 2023, I made orders dismissing a recusal application that had been brought by the mother’s litigation guardian, on her behalf, and I confirmed that the trial would resume today.
On 11 September 2023, the father filed a short updating affidavit, comprising of some nine or so pages, excluding annexures.
On 13 September 2023, the mother, by her litigation guardian, filed an Application in a Proceeding seeking both an adjournment of the part-heard trial and, misguidedly, leave to appeal orders that I made earlier this year for the appointment of a litigation guardian for her. I explained to Ms S that it is not within my power to grant leave to appeal from an order of mine and she did not proceed with that aspect of her application and properly so. It will be dismissed.
The adjournment application of the mother is supported by an affidavit of her litigation guardian, as well as by oral submissions made by her today. The mother, by her litigation guardian, could have responded to the father’s affidavit that was filed on 11 September 2023 but has not done so. Alternatively, she could have sought to update the Court with any evidence she wished to put before it in relation to matters arising since 31 August 2022, but she has not done so.
In my view, both the affidavit and the oral submissions of Ms S today do not support a further adjournment of these proceedings which, as I have indicated, have been part-heard now for over 12 months.
Insofar as the applicant mother and her litigation guardian are not legally trained, I have, on a number of occasions, both today and in my reasons for judgment delivered on 5 September 2023, endeavoured to explain to them that legal representation is a privilege, not a right.
The applicant mother has had numerous lawyers, some retained by her, and some allocated by Victoria Legal Aid. Other than her first lawyers in these proceedings, namely, Q Legal, who were on the record as acting for her between about May 2019 and June 2020, none of the others have remained on the record for very long. I was told today, in the course of submissions - and unsupported by any evidence - that the mother has now retained a solicitor, as well as counsel by direct access. Those two concepts, in my view, are mutually exclusive. If she has retained counsel by direct access, I do not understand the need for her to have retained solicitors. In any event, no Notice of Address for Service has been filed by a solicitor and no solicitor or member of counsel appeared (or sought to appear) before the Court today.
No evidence whatsoever was adduced to support the assertion that the mother has retained either solicitors or counsel. There was no appearance today by any lawyers on her part, whether solicitor or counsel, seeking an adjournment on the basis that they had been retained by her. I can have no confidence, based on past experience in this matter or on the evidence, that, even if lawyers were retained by the mother, that they will continue to act for her until the conclusion of the trial. If the past is anything to go by, I cannot be very optimistic.
I should indicate also that, as early as 7 February 2023, the Court was advised by a Grants Services Officer, in the Grants and Quality Assurance section of Victoria Legal Aid, that it allocated this matter to W Lawyers on 20 December 2022; namely, some nearly four months after the trial was adjourned part-heard, after the matter was previously allocated to Y Lawyers and, before that, N Lawyers.
Victoria Legal Aid advised that the mother had continuously refused to accept the solicitors allocated by it to her and would not engage with W Lawyers. The letter further stated that they had also provided the mother with the option, more than once, to seek alternative representation for her matter including providing the Victoria Legal Aid panel list; however, no alternative lawyer has been nominated by her. In the penultimate paragraph of their email, Victoria Legal Aid stated that:
Given the history of this matter, issues with allocations due to capacity and [the mother’s] continued refusal to accept the most recent lawyer appointed by VLA, we advise that we will not be making any further arrangements for representation in [the mother’s] matter and will be closing our file.
Insofar as the mother has complaints against Victoria Legal Aid, they are a matter between her and it, and not this Court. She has had 12 months to put her proverbial house in order but she has not done so. Rather, in the intervening period, she has brought various applications (including two recusal applications), has appeared self-represented, has appeared by her litigation guardian but has not focused on what I might call the “big picture”, namely, getting her case in order.
The second basis upon which the mother seeks an adjournment is on the basis of what I am told are “investigations”. Insofar as she has made complaints about her previous lawyers and Victoria Legal Aid, in my view, based upon the evidence, and the submissions that have been made to me, such complaints are entirely irrelevant. They are a matter for her and them, rather than the Court, and do not ground the adjournment application.
Insofar as the mother refers to a Victoria Police Family Violence Investigation Unit investigation, as well as an investigation by the Sexual Offences and Child Abuse Unit, she qualifies those investigations as being in relation to breaches of an intervention order. Established breaches of an intervention order or intervention orders may be of some relevance but, ultimately, I am not bound by any findings. The mother submits any findings are relevant; however, I am the trier and finder of fact in the matter between the parents in this Court. Other than the submission, albeit in the form of Ms S’s affidavit, that findings from this investigation are highly relevant to the child’s welfare, there are absolutely no particulars of those investigations, of the prospects of any outcome of those investigations or even any indication of when those investigations might be concluded.
The highest the mother’s evidence goes is that there are investigations. Those investigations may very well come to naught; I do not know. But, in my view, given the dearth of evidence surrounding these investigations, I am not satisfied that they are a proper basis for an adjournment.
The third basis is the complaint of the mother, through her litigation guardian, that the evidence is not up to date. The mother has had more than 12 months to put updating evidence before the Court and has failed to do so. However, as I have indicated already, in that time, she has brought several applications and it may be that her time might have been better spent focusing on updating her evidence, rather than ventilating the applications which have not been successful.
I am not satisfied that the absence of updating material is a proper basis to adjourn the proceedings, not only because the mother has done nothing in this regard but because it is common ground that she has not seen the child face-to-face since 1 January 2023. Therefore, it is difficult to know what relevant updating evidence she could put before the Court, and I was not illuminated about that either by Ms S’s affidavit or her oral submissions today.
Counsel for the respondent father, in her submissions in opposition to the adjournment application, said that it is open to the mother, through Ms S, to seek to briefly lead some oral evidence and, if that course is pursued, I will listen to the submissions and determine that issue.
Lastly, I also take into account the matters referred to by the High Court in Aon Risk Services v Australian National University (2009) 239 CLR 175. In that case, French CJ at [26] and [27], referred to the earlier decision of the High Court in Sali v SPC Ltd (1993) 116 ALR 625, in which Brennan, Deane and McHugh JJ said at 629:
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
Whilst Toohey and Gaudron JJ dissented as to the result, they nevertheless acknowledged at 636 that:
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
In Aon Risk Services v Australian National University, French CJ referred at [27] to:
…the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. …there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.
(Footnotes omitted)
Similarly, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [99], referred to the modern view that even an order for indemnity costs may not always undo the prejudice that a party suffers and, in this case, it appears that the mother is a person of limited means.
Their Honours also referred at [100] to the views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189, that:
…justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted.
I note that, at this stage, the child of these proceedings, is in the father’s primary care and he has had to contend, not just with her day-to-day care, in circumstances where the mother has not seen the child since January of this year, but also with the adjourned part-heard trial and a number of hearings since 31 August 2022.
Saliently, the plurality in the Full Court at [112] said:
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.
Whether one refers to pleadings or whether one refers to further evidence, the principle remains the same. Their Honours continue:
That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
As I have observed above, the mother has now had more than a year to prepare the case for the resumption of trial and has not done so. At [113], the plurality said:
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
(Footnotes omitted)
Similarly, Heydon J said at [156]:
The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.
If I were to adjourn this matter, as the mother seeks, the state of my list is such that I could not relist until some time probably towards the middle of next year.
As I have endeavoured to indicate to the mother and to the litigation guardian on a number of previous occasions, the paramount concern that I must have is for the child’s best interests. It cannot be in her best interests for these proceedings, which have been almost co-extensive with her life, not to be concluded. Litigation is stressful for the parties thereto and common sense would suggest that the stress under which a primary parent labours likely has some impact, even if only indirectly, on the child or children in his or her care.
In the circumstances, I shall dismiss the mother’s application in a proceeding filed on 13 September 2023 and the trial will resume today on such material as is before me.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 20 October 2023
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