Cassell & Kolar (No 8)

Case [2023] FedCFamC1F 898


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…

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AGLC
Cassell & Kolar (No 8) [2023] FedCFamC1F 898
Case
[2023] FedCFamC1F 898
Decision Date

CaseChat Overview and Summary

The case of Cassell & Kolar (No 8) involves a protracted family law dispute between Ms Cassell, the mother, and Mr Kolar, the father, over parenting arrangements for their child. The proceedings have been ongoing since 2019, with the final hearing adjourned since August 2022. The mother had previously been appointed a litigation guardian but has since applied for the guardian to be discharged. This application has raised significant legal issues concerning the mother’s ability to represent herself in the litigation and the impact of the absence of a litigation guardian on the proceedings.

The court had to decide whether the mother could continue to represent herself in the litigation without a litigation guardian, in light of the requirements of r 3.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Given the mother’s diagnosis of Complex Post Traumatic Stress Disorder, the court was also required to consider her capacity to conduct the proceedings as a self-represented litigant. Additionally, the court needed to determine whether it was in the best interests of the child for the trial to be adjourned, considering the father’s role as the sole carer and the financial and emotional stress of the litigation.

The court found that the mother’s application to discharge her litigation guardian was unsuccessful, and the proceedings were struck out with a right of reinstatement. The court held that the mother’s diagnosis of Complex Post Traumatic Stress Disorder did not automatically disqualify her from representing herself, but she needed to provide evidence from a qualified mental health expert regarding her capacity to do so. The court also noted that the father was the sole carer of the child and had been labouring under the financial and emotional stress of the litigation for four years. Given the extensive duration of the proceedings, the court ruled that it was not in the child’s best interests for the trial to be further adjourned. The court further ordered that the mother had leave to reinstate her amended initiating application within 12 months, subject to certain conditions, including providing evidence of her capacity to self-represent and confirmation of legal representation and funding.

In conclusion, the court ordered that the proceedings be struck out with a right of reinstatement, provided the mother meets the specified conditions. The court also fixed costs for subpoena objectors and noted that the interim parenting orders made in 2021 were unaffected by the strike-out. The orders were made with the consent of the father and the Independent Children’s Lawyer.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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