Cassell & Kolar (No 8)
[2023] FedCFamC1F 898
•19 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cassell & Kolar (No 8) [2023] FedCFamC1F 898
File number(s): MLC 4879 of 2019 Judgment of: STRUM J Date of judgment: 19 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the final hearing has been adjourned part-heard since August 2022 – Where applications for further adjournment of the recommencement of the trial have been dismissed – Where an order for the appointment of a litigation guardian for the applicant mother has been made – Where this order has not been appealed – Where the mother’s litigation guardian has made an application to withdraw as litigation guardian – Where the mother is a self-represented litigant – Where the effect of r 3.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is that the mother cannot continue the litigation without a litigation guardian – Where the mother is restrained from cross-examining the father due to the requirements of s 102NA – Where the proceedings have been on foot for four years and are almost co-extensive with the child’s life – Where the father is the sole carer of the child and is labouring under the financial and emotional stress of litigation – Where it is not in the child’s best interests for the trial to be adjourned – Where the mother has not taken steps to prepare for the resumption of the trial – Proceedings struck out with a right of reinstatement subject to the mother meeting certain conditions. Legislation: Family Law Act 1975 (Cth) Pt VII, Pt VIII, s 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 3.13, 5.01
Cases cited: Aon Risk Services Limited v Australian National University 239 CLR 175; [2009] HCA 27
Bennett & Bennett (1985) FLC 91-617; [1985] FamCA 7
Cronin & Kishigami [1998] FamCA 1630
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
Tudor & Tudor (1992) FLC 92-273; [1991] FamCA 89
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 18–19 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:
19 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.On the oral application made by Ms S, paragraph 2 of Orders made on 17 May 2023 appointing Ms S as a litigation guardian be discharged.
2.The proceedings, including all extant applications, be struck out.
3.The mother have leave to reinstate her Amended Initiating Application filed 3 June 2022 within 12 months.
4.Any application by the mother pursuant to order 3 herein, be accompanied by evidence in admissible form as follows:
(a)in the event she seeks a discharge of paragraph 4 of orders made 9 March 2023 appointing the litigation guardian, evidence from an appropriately qualified mental health expert regarding her capacity to adequately:
(i)conduct the proceedings as a self-represented litigant despite her diagnosis of Complex Post Traumatic Stress Disorder; or
(ii)give adequate instruction for the conduct of the proceedings despite her diagnosis of Complex Post Traumatic Disorder.
(b)confirmation from any solicitor or barrister engaged to act for the mother in these proceedings, and details of funding available for such representation, either pursuant to s.102NA of the Family Law Act 1975 (Cth), or privately and the source of same.
(c)in the event she does not seek the discharge of the litigation guardian order, an Application and supporting Affidavit from the person proposed to be appointed pursuant to rule 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
5.If by 19 September 2024, the mother has not made application in accordance with these orders, the father have leave to seek to proceed with his Further Amended Response filed 14 January 2022, on an undefended basis.
6.The costs of the subpoena objectors be fixed on scale and reserved as follows:
(a)for 31 August 2022 the sum of $3,076
(b)for 31 January 2023 the sum of $1,882
(c)for 2 March 2023 the sum of $1,882
(d)for 9 March 2023 the sum of $1,882
(e)for 18 September 2023 the sum of $3,831
(f)for 19 September 2023 the sum of $3,003
AND THE COURT NOTES THAT:
A.Counsel for the father and Independent Children’s Lawyer have advised the court that they have today appraised Mr V of Q Legal of the proceedings being struck out with a conditional right of reinstatement.
B.In the event the matter is ready to be relisted for trial, it is part-heard before the Honourable Justice Strum.
C.The extant interim parenting orders made on 10 March 2021 and amended on 13 May 2021 are unaffected by the strike-out and rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 has no application to them.
D.These Orders are made with the consent of the Respondent father and the Independent Children’s Lawyer.
E.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 Annexure and these particulars are included in these Orders.
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 proceedings have an extensive history in this Court, spanning more than four years. The applicant mother filed an Initiating Application in May 2019 for final and interim financial relief pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“Act”). The following month, she filed an amended Initiating Application also seeking final and interim parenting orders pursuant to Pt VII of the Act.
For background, these reasons for judgment are to be read together with my earlier reasons for judgment in these proceedings.
The proceedings were listed for trial commencing on 29 August 2022 for 10 days. The mother was represented by solicitors and counsel pursuant to a grant of legal aid consequent upon an order previously made by me pursuant to s 102NA of the Act. On the third day of the trial, I granted leave, first to counsel and then to the solicitors for the mother, to withdraw. The mother then became not only self-represented but also subject to the restrictions in s 102NA. Accordingly, I adjourned the trial part-heard on 31 August 2022.
On 18 November 2022, I fixed the trial for resumption on 17 April 2023 for eight days. Thereafter, on 9 March 2023, I made an order of my own motion, but on the mother’s own evidence, that a litigation guardian be appointed for her. That necessitated the resumption of trial the following month being vacated.
On Application in a Proceeding filed on 9 May 2023 on behalf of the mother, by her friend, Ms S, I ordered that Ms S be appointed as the mother’s litigation guardian, and I refixed the trial for resumption on 18 September 2023.
By Application in a Proceeding filed by Ms S on 8 June 2023 and subsequently amended on 23 June2023 and further amended on 17 July 2023, Ms S sought, inter alia, that the order for the appointment of a litigation guardian for the mother be discharged. An affidavit by Ms S was filed in support of that application, as was an affidavit by the mother.
Annexure C to the mother’s affidavit included an email sent by the mother on 7 February 2023 at 10.55 am to my chambers, as well as to the solicitors for the father and to the Independent Children’s Lawyer, in which she stated, inter alia:
PTSD is a recognised disability. Being left no option but to self-represent would only cause me further psychological harm and injury; this may, and will likely, leave me with a permanent disability.
By orders made by me on 5 September 2023, I dismissed that application, there being no sufficient evidence to warrant the discharge of the order for the appointment of a litigation guardian.
For the avoidance of doubt, the orders I made that day noted that the part-heard trial remained listed to resume on 18 September 2023. Between the adjournment of the hearing of the trial on 31 August 2022 and the resumption thereof on 18 September 2023, the matter has been before the Court, whether before me or a Senior Judicial Registrar, on some eight occasions, including two applications that I recuse myself, both of which I found to be devoid of merit and I dismissed.
On 13 September 2023 Ms S filed yet another Application in a Proceeding seeking that the resumption of the part-heard trial be adjourned and that:
…leave be granted to appeal Paragraph 4 of his Honour’s orders of 9 March 2023; such order being for a litigation guardian to be appointed to the [mother].
The latter relief sought was misconceived. A judge at first instance does not have power to grant leave to appeal from orders made by him or her; that is a matter for the Full Court. Accordingly, I dismissed that aspect of the application yesterday. I also dismissed the application for an adjournment of the resumption of the part-heard trial and delivered ex tempore reasons for judgment yesterday. In her affidavit filed on 13 September 2023, Ms S deposed at paragraph 4, albeit more in the nature of submissions rather than evidence, first that:
[The mother] has no legal training and has been required to represent herself throughout the majority of the proceedings; impacting her ability to present relevant evidence to the Court or be adequately heard. She has been refused representation by Victoria Legal Aid and Women’s Legal Service…
Secondly, she deposed that:
A number of investigations remain underway into the allegations of family violence and matters related to the proceeding.
Thirdly, Ms S submitted that:
…further time is required to allow findings from external investigations and assessments, which can assist the Court in making determinations, to be available to the Court and the parties regarding [the child’s] safety and welfare.
Fourthly, she deposed that:
…the investigation by Victoria Police’s Family Violence Investigation Unit and Sexual Offences and Child Abuse Unit regarding breaches of the intervention orders by the respondents (the Respondent father and each of his parents), remain active. Any findings of this investigation are highly relevant to the primary purpose of these proceedings concerning [the child’s] best interests…
Fifthly, she contended that:
The father continues to hinder and prevent [the child’s] contact and communication with her mother.
This was so, notwithstanding that there has never been an enforcement application brought in that regard.
Sixthly, she contended that:
The evidence currently before the Court does not reflect present circumstances…. updated evidence reflecting [the child’s] current needs is most appropriate to assist the Court in making determinations in her best interests…
It is not clear to me how Ms S could make that contention in circumstances where, for whatever reason - and the reasons are disputed - the mother has not spent face-to-face time with the child since January of this year. Ms S continued at paragraphs 6–7 that:
There is an open investigation of allegations regarding the professional conduct of the instructing solicitor and counsel appointed by VLA when purporting to represent [the mother] at the hearing in August of 2022. …
Allowing further time for the outcome of this investigation to be concluded is necessary before resumption of the hearing to avoid wasting the resources of this Honourable Court.
It eludes me how the outcome of that investigation can possibly assist me in resolving the parenting or financial matters before the Court; however, that is a matter for the mother and any litigation guardian who subsequently assumes that role or any lawyers who subsequently come to act for her. Ms S also submitted that she is not legally trained, and that the complex nature of the matter (as she described it) has left her without sufficient preparation time to adequately prepare for the hearing. I fail to understand why, even someone who is not legally trained, would take more than four months to prepare for the resumed hearing in circumstances where she has clearly obtained the transcript of the first three days of the hearing, and she was appointed in the mid-May of this year. Further, notwithstanding the description of the proceedings as being “complex”, whilst that may be the perception of the mother and/or Ms S, at this stage, that is not necessarily accurate.
Ms S also deposed to funds being available for representation of the mother and that said that she sought additional time to secure such representation.
By the end of the day yesterday, it was clear that Ms S, who asserts, albeit unsupported by evidence, that she suffers from auditory processing delays, was struggling to conduct the proceedings on behalf of the mother. It is remarkable that these difficulties were not brought to the Court’s attention in her affidavit filed on 9 May 2023 in support of her application to be appointed as the mother’s litigation guardian. Whilst she deposed that she is not a legal practitioner and does not possess the relevant skills or qualifications required to act effectively in a trial as a litigation guardian for the mother, she nevertheless deposed that she met the requirements of r 3.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) and could “fairly and competently conduct the proceeding” for the mother.
Further, although she considered that the mother did not require a litigation guardian, notwithstanding the order made on 9 March this year, she confirmed at paragraph of her affidavit of 8 May 2023, that:
If the Honourable Court remains of the opinion that [the mother] requires a Litigation Guardian however, I consent to being appointed to that role. I have made significant enquiries to gain an understanding of the expectations upon me if appointed.
Late in the day yesterday, Ms S flagged an application by her seeking the discharge of her appointment as the mother’s litigation guardian. After a long day, manifestly gruelling for Ms S, I adjourned until this morning in order to give her the opportunity to carefully reflect upon her proposed application and to discuss same with the mother.
This morning, Ms S again flagged that application and, in circumstances where she is, effectively, self-represented, I am content to treat that application as having been made orally and without the need for leave or the filing of an Application in a Proceeding. That is consistent with the requirements of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). Counsel for the father and for the Independent Children’s Lawyer agree that I do not have the power to compel Ms S to continue acting as the mother’s litigation guardian. Accordingly, I shall discharge the order I made on 17 May 2023 appointing Ms S as the mother’s litigation guardian. The Court is grateful for the assistance Ms S has provided to date, both to the mother and to it.
That, therefore, leaves the mother without a litigation guardian and without legal representation, albeit that I have on several occasions stressed to her that such representation is a privilege, not a right, in circumstances where she remains subject both to an order for a litigation guardian and a s 102NA order. The effect of the former order, by reason of r 3.13(1) of the Rules, is that she may only, inter alia, continue the proceeding by a litigation guardian. The effect of the latter order, by reason of s 102NA(2), is that she cannot cross-examine the father personally. That leaves her, and the Court, in a difficult position.
It my ex tempore reasons for judgment yesterday, I referred to the decision of the High Court in Aon Risk Services Limited 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 in 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.
French CJ also referred 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.
His Honour referred to a number of cases following the decision of the High Court in Sali v SPC Ltd:
…in which it has been accepted…that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.
Similarly, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services v Australian National University at [99], referred to the modern view that even an order for indemnity costs may not always undo the prejudice that a party suffers. In this case, it appears that the mother is a person of limited means.
Their Honours also referred to the views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, 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.
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.
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.
The mother has had more than a year now 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.
Heydon J said in the penultimate paragraph of his reasons for judgment 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.
These proceedings have now been on foot for over four years and the trial has been adjourned part-heard for over a year; however, by reason of matters in the mother’s camp, it appears to be no closer to finalisation, albeit that the father and his lawyers, from their perspective, are ready to proceed. Ten days were allocated for the trial in August and September of last year, but it only proceeded on the first three of the allotted days. Eight days were allocated for the resumed trial in April of this year, but that trial had to be vacated, consequent upon the making of an order for the appointment of a litigation guardian for the mother. Five days were allocated for the resumed trial this week, but it has only proceeded yesterday and today and only in relation to interlocutory matters.
In a short updating affidavit filed by the father on 11 September 2023, he deposes to his financial circumstances. His gross income from personal exertion is said to be $1000 per week; additionally, he receives $394 per fortnight by way of family tax benefit. The mother has been assessed to pay child support to him in the order of approximately $459 per annum, but it appears, on his evidence, that she has refused to authorise the release of those de minimis funds to him by Services Australia and that, in June this year, she ceased making payments altogether.
The father deposes to having resorted to borrowing funds from his brother and mother, including to pay rent for the child and him and school fees for the child. These are all matters upon which he may be cross-examined, if and when the trial resumes. His costs disclosure notice, dated 15 September 2023, specifies that, to that date, he had incurred total costs and disbursements in the order of about $430,000; he had unbilled professional costs of $15,000; and his future costs and disbursements were estimated to be in the order of $77,000, taking his actual and anticipated legal fees to over half a million dollars.
I am not prepared, at this stage, to waste further resources of the Court or financial resources of the father in the hope, possibly vain, that the mother will bring her proverbial house into order.
The mother has had ample opportunity, especially over the past year, to do so; however, rather, she has seen fit to pursue applications which were found to be entirely devoid of merit. I must balance the interests of the child, which are the paramount consideration in proceedings under Pt VII of the Act, together with those of the father and the mother. The child’s best interests may be the paramount consideration, but they are not the only consideration. These proceedings have been substantially coextensive with the child’s life to date. It cannot be gainsaid that protracted proceedings are not in a child’s best interests, either directly, or indirectly by reason of his or her primary carer remaining under the stress thereof.
The competing interests of the father and the mother are, on the one hand, to bring an end, even if only temporarily, to the financial and emotional strain upon the father and, on the other hand, to enable the mother to have her day in court if she is ever in a position to do so. In my view, the best way to balance these competing considerations is to strike out the proceedings with a right of reinstatement within 12 months, subject to the mother meeting certain conditions precedent. If she fails to do so within the prescribed time the father should have leave to seek to proceed on an undefended basis. I can see no prejudice to the mother in so ordering nor was any prejudice submitted to me by Ms S.
This will give her the opportunity to get her house in order as she sought to do yesterday. It will give the father peace of mind and of finances in the meanwhile.
In Bennett & Bennett (1985) FLC 91-617 at 79,994, Nygh J, (with whom Dovey and Strauss J agreed), said that:
The striking of a matter out of a list is not a dismissal of the application: it is merely the removal of a matter from the list of cases which are pending for hearing in a particular court. Similar remarks were made by Mr Justice Kaye in the case of R v McGowan [1984] VR 1002. If it is desired to prevent the matter from ever being listed for hearing, the appropriate method is to apply that the application be dismissed or permanently stayed for want of prosecution. In that case, the onus rests upon the party applying for the dismissal or stay.
In Tudor & Tudor (1992) FLC 92-273 at 79,026, the Full Court, comprised of Baker, Nygh and Bulley JJ, said:
As the recital of the facts in this case indicates, the learned trial judge was concerned not to make an order which would have the effect of disposing of the rights of the wife. He did not make an order for the dismissal of the wife’s application, which may or may not have been of a final character since in any event it was not based on a decision on the merits … but struck out the wife’s application.
As the decision of the Full Court in Bennett & Bennett indicates, the striking out of a matter is not a dismissal of the application, but merely the removal of a matter from the list of cases which are pending for hearing in a particular court.
Lastly, in Cronin & Kishigami [1998] FamCA 1630 Kay J, in the Full Court, together with Finn and May JJ, said:
There is an undoubted power to have a matter struck out, and that was discussed by the Full Court in Tudor (1992) FLC 92-273. The difference between striking out a matter and dismissing it affects the nature of any application that is to be made to have the matter reinstated. If a matter is dismissed, then an application will necessarily have to be made to enlarge the time to enable a matter to be recommenced, it having been not dismissed on the merits. If it is struck out one does not need to recommence the proceeding but merely to apply to have the matter reinstated. It is a subtle distinction, but the power in my view is undoubted, and it is appropriate to exercise it in this case.
Lest there be any doubt and, in my view there is not, given the dicta of Kay J, there is power in the Court, pursuant to s 69(3) of the FCFCOA Act, which provides that, amongst other things:
If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 1) or a Judge under subsection (1), the Court or judge may make such order or direction as the Court or Judge thinks appropriate.
Section 69(4) provides:
In particular, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may do any of the following:
...
(b) strike out, amend or limit any part of a party’s claim or defence.
In my view, the inability or the lack of preparation, whichever it be, on the part of the mother, by her litigation guardian, to enable the part-heard trial to resume yesterday, contrary to the order that I had made in May adjourning it to this week, and which I confirmed in the orders of 5 September 2023, is a failure by the mother to comply with a direction given by the Court and so, whether it be pursuant to the dicta of Kay J in Cronin & Kishigami or s 69 of the FCFCOA Act, I am satisfied that I have power to strike out these proceedings.
There are extant interim orders which provide for the father to have sole parental responsibility for the child and for the child to live with him. Interim orders also provide for the mother to spend supervised time with the child. It is common ground that she has not done so since January of this year, albeit that the reasons therefor are disputed. She also communicates with the child weekly by video conference. Those interim orders will remain on foot, notwithstanding the striking out of the proceedings. Those orders are not affected by r 5.01 of the Rules. A minute to this effect has been provided for counsel by the father, which is supported by the independent children’s lawyer, as well as by the subpoena objectors.
In circumstances where Ms S remains the litigation guardian until I make orders discharging her appointment, I asked Ms S whether she wished to make any submissions in relation to this minute of order. She raised the following issues. Insofar as the orders that are proposed to be made refer to her adducing evidence from an appropriately qualified mental health expert, Ms S sought to confine that to Mr D, the mother’s treating psychologist. I am not satisfied that it is in the interests of, in fact, the mother, the father or the child, for there to be such a limitation on the evidence. If and when the mother seeks to reinstate the proceedings and to adduce such evidence, it may be that there will be a concession by the father and/or the Independent Children’s Lawyer that Mr D is an appropriately qualified mental health expert.
If there is a challenge to his expertise, given whatever his diagnosis may then be, I will have to determine that issue, so I decline to make the amendment sought in that regard. Another one of the preconditions proposed by the father and supported by the Independent Children’s Lawyer is that the mother provide confirmation from any solicitor or barrister engaged to act for her in these proceedings and details of funding available for such representation, either pursuant to s 102NA of the Act or privately, and the source of same. Ms S, for reasons that are not entirely apparent to me, opposed disclosure of the source of the details and the source of funding.
It is a fundamental requirement in this Court that people make disclosure of their costs incurred, their costs paid, their future estimated costs and, most relevantly, the sources of funding. In those circumstances, I decline to make the amendment sought by Ms S.
Lastly, and unrelated to the minute, Ms S sought to agitate some variations to provisions of the extant interim parenting orders, albeit that she could not point me to any evidence in support thereof. There has been no evidence adduced by the mother that would support any variation since prior to the commencement of the trial at the end of August last year. Whilst Ms S submitted that there are supervision reports, she could not point me to any supervision reports that postdate August of last year.
In any event, in circumstances where I propose to strike out the proceedings, I will not entertain an interim application. Before any interim application can be brought, the proceedings will need to be reinstated. For the preceding reasons, I propose to make orders substantially in the terms proposed by the father and supported by the Independent Children’s Lawyer and not opposed by the counsel for the subpoena objectors.
I shall not make any determination at this stage as to whether Ms S, or anyone else, should pay the costs of the subpoena objectors of the adjournment. In fact, I have not even determined yet whether the subpoena objectors should have their costs paid. I have expressed some preliminary views which the mother and whoever becomes her litigation guardian, if the order is not discharged, would do well to reflect upon. The subpoenas, in my view, are extraordinarily broad, not tailored to any matter with which the subpoenaed documents might be said to have apparent relevance. On the other hand, I am acutely aware that the subpoena objectors have now had to come to Court on six occasions and on none of those occasions have their objections been capable of being ruled upon.
I could today, prior to discharging Ms S, have permitted counsel for the subpoena objectors to ventilate the costs application and, in fact, prior to that, to ventilate his objections. However, in circumstances where Ms S no longer wishes to be the litigation guardian for the mother but has remained to assist the Court today and in circumstances where the mother, upon the discharge of Ms S, will become a self-represented litigant who is subject to an order for the appointment of a litigation guardian, in my view, it would not be fair for any application, whether it be to strike out the subpoenas or for costs to be ventilated. On the other hand, as I have indicated, I am acutely aware of the costs that the subpoena objectors have been put to. All shall do at this stage is to fix those costs.
They are, effectively, the minimum or close to the minimum costs that the subpoena objectors could recover if I were minded to make an order for costs. Whether a costs order should be made and, if so, against whom it should be made, will await another day. I simply reiterate that the subpoenas were filed by solicitors acting for the mother at the time they were issued. Whether the terms of those subpoenas were drawn on the mother’s instructions, or a matter of the solicitors’ own drafting, is a matter that I do not know and cannot know today.
In the circumstances, I propose to make orders in accordance with the minute of orders proposed by the respondent, consented to by the Independent Children’s Lawyer, unopposed by the subpoena objectors, providing for the proceedings, including all extant applications, to be struck out.
I certify that the preceding fifty-nine (59) 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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