FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cassell & Kolar (No 9) [2025] FedCFamC1F 147
File number: MLC 4879 of 2019 Judgment of: STRUM J Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – Application in a Proceeding – Application for part heard final hearing to be declared “invalid” and hearing to be started afresh before another judge – Where s 102NA order previously made – Where final hearing previously adjourned due to applicant becoming unrepresented – Applicant remaining under cross-examination – Order made allowing applicant to confer with new lawyers – Applicant alleges bias and lack of procedural fairness – Where there is no basis for allegations – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 102NA
Family Law Regulations 1984 (Cth) r 7
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.14, 3.15
Legal Profession Uniform Law Australian Solicitors' Conduct Rules2015 (NSW) r 26
Cases cited: Cassell & Kolar (No 5) [2023] FedCFamC1F 478
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Sofia & Treacy (No 2) [2025] FedCFamC1A 10
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 27 February 2025 Place: Melbourne For the Applicant: Litigant appeared in person Solicitor for the Respondent: Ms Kotzapavlidis, Arkadia Family Law For the Intervener: The Intervener did not appear Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 4879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CASSELL
Applicant
AND: MR KOLAR
Respondent
Q LEGAL
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Leave be granted to the Respondent Father to rely upon his Response Application in a Proceeding and supporting Affidavit filed this day.
2.The part-heard trial of these proceedings resume before the Honourable Justice on 14 July 2025 at 10.00am for no more than 5 days (noting that the trial commenced on 29 August 2022, was adjourned on 31 August 2022 and resumed on 18 and 19 September 2023).
3.The Applicant Mother be at liberty to confer with lawyers (solicitors and counsel), for the purpose of retaining and instructing them in relation to the resumption of the part-heard trial regarding any matter related to the proceedings notwithstanding that she is under cross examination AND THE COURT NOTES that the Respondent Father, through his lawyer this day, has advised the Court and the Applicant Mother that he consents to her so doing for the purposes of r 26.1.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
4.Each of the Applicant Mother and Respondent Father have leave to file an updating affidavit in relation to events since 19 September 2023 limited to 15 pages to comply with r 2.14 of the Federal Circuit and Family Court of Australia (Family…
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- Cassell & Kolar (No 9) [2025] FedCFamC1F 147
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- [2025] FedCFamC1F 147
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CaseChat Overview and Summary
The court had to determine whether the application was valid and whether the allegations of bias and procedural unfairness were substantiated. Given the procedural history, the court examined whether the applicant had grounds to claim the hearing was invalid and whether the judge’s conduct warranted a new hearing. The court found no basis for the allegations of bias and procedural unfairness.
In its reasoning, the court dismissed the application for the hearing to be declared invalid and to be started afresh. It held that the applicant’s allegations were unfounded and did not meet the threshold for a new hearing. The court noted that the applicant had not sought to discharge the discretionary section 102NA order, which would have prevented her from cross-examining the respondent in person if unrepresented. The court also outlined the procedures for the resumption of the trial and the preparation of an updated family report. The application was dismissed, and the trial was scheduled to resume on a specified date.
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
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1. Leave be granted to the Respondent Father to rely upon his Response Application in a Proceeding and supporting Affidavit filed this day.
2. The part-heard trial of these proceedings resume before the Honourable Justice on 14 July 2025 at 10.00am for no more than 5 days (noting that the trial commenced on 29 August 2022, was adjourned on 31 August 2022 and resumed on 18 and 19 September 2023).
3. The Applicant Mother be at liberty to confer with lawyers (solicitors and counsel), for the purpose of retaining and instructing them in relation to the resumption of the part-heard trial regarding any matter related to the proceedings notwithstanding that she is under cross examination AND THE COURT NOTES that the Respondent Father, through his lawyer this day, has advised the Court and the Applicant Mother that he consents to her so doing for the purposes of r 26.1.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
4. Each of the Applicant Mother and Respondent Father have leave to file an updating affidavit in relation to events since 19 September 2023 limited to 15 pages to comply with r 2.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to be filed and served by 17 April 2025.
5. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and the child X born 2018 attend upon Ms R the Family Consultant appointed under Regulation 7 (referred to as the Family Consultant) for the purposes of the preparation of an updated Family Report, limited to the period since her report dated 28 July 2022, and such report be released by no later than 7 days prior to the resumption of the part-heard trial listed on 14 July 2025 and that the family report address:
(a) any views expressed by the child;
(b) the matters relevant to sections 60CC, 61D(3) and 61DAA of the Family Law Act 1975 (Cth);
(c) the impact upon the child and upon the child’s relationship with the mother if the Court made orders as sought by the father;
(d) the impact upon the child and upon the child’s relationship with the father if the Court made orders as sought by the mother;
(e) any other matters that the Family Consultant considers important to the welfare or best interests of the child.
6. Not later than 4.00 pm on 6 March 2025 the parties provide their contact telephone numbers and email addresses to …@....
7. Each party do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
8. The parties and the child attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
9. The Family Consultant be at liberty to inspect any material filed by the parties and any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.
10. Upon the updated family report being provided to the Court, the report be released and a copy provided to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
11. Unless a party objects in writing within 14 days of the date of releasing the updated family report, a copy of the updated family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a) a Children’s Court;
(b) a child protection authority;
(c) a State or Territory legal aid authority; and
(d) a convener of any legal dispute resolution conference.
12. Unless otherwise ordered, no person shall release the updated family report, or provide access to the updated family report to any other person.
13. The Independent Children’s Lawyer have leave to issue a subpoena directed to Victoria Police.
14. All extant subpoenas and objections be listed before Senior Judicial Registrar Sudholz for determination on 20 June 2025 at 10.00am and the Independent Children's Lawyer and the Intervenor have leave not to appear at the subpoena hearing if so advised.
15. The Applicant Mother’s oral application for transcript of the hearing this day be dismissed, NOTING THAT she has already been provided, at the Court’s expense, with transcript of the hearings of 29 August 2022, 30 August 2022, 31 August 2022, 18 September 2023 and 19 September 2023.
16. The costs of the Respondent Father and Independent Children’s Lawyer of this day be reserved until after delivery of judgment at trial.
17. The Application in a Proceeding filed by the Applicant Mother on 20 February 2025 and the Response to Application in a Proceeding filed by the Respondent Father on 27 February 2025 be otherwise dismissed.
THE COURT NOTES THAT:
A. The Applicant Mother has advised the Court that she does not seek the discharge of the discretionary s 102NA order made on 18 January 2022 and that she understands that she will therefore be unable to cross examine the Respondent Father in person if she is not legally represented at the resumption of the trial on 14 July 2025.
B. Order 3 is made without prejudice to the right of the Respondent Father and the Independent Children’s Lawyer to make submissions in relation to the weight to be given to the Applicant Mother’s evidence by reasons of the leave granted to her by that order.
C. Rule 2.14(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides, inter alia, that all documents must be typed in at least 12 point font size (Times New Roman or equivalent) and have margins of approximately 2.5 cm.
D. At the date on which a copy of the Family Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
E. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
F. In the event a party to these proceedings objects to the release of the family report pursuant to order 7 herein, they shall write to the chambers of Justice Strum seeking that the matter be listed on short notice for his or her objection to be heard.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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