Cassell & Kolar (No 9)
[2025] FedCFamC1F 147
•27 February 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
STRUM J:
I have published eight judgments in this matter to date, and this is my ninth. On this occasion, as on some previous occasions, this is an ex tempore judgment.
I have before me for determination this day an Application in a Proceeding filed by the mother on 20 February 2025, supported by an affidavit by her, together with a Response to an Application in a Proceeding filed by the father on 27 February 2025, supported by an affidavit by him. The father's position in his Response is supported by the Independent Children's Lawyer. The mother's Application has been helpfully supported by written submissions that were filed late on the eve of this hearing. I have read all of that material and I have taken into account the oral submissions made by each of the mother, who appears in person, the solicitor appearing for the father, and counsel for the Independent Children's Lawyer.
The mother's Application in a Proceeding seeks, in the first four paragraphs thereof, essentially procedural orders for an abridgement of time; an urgent listing of the matter; for the Court to grant leave for that to occur; for what was to be a Directions Hearing this day to be vacated; and for the Application to be listed for a contested hearing. In circumstances where all parties indicated that they were prepared to proceed today and I had time to deal with the matter, and taking into account and placing weight on the mother's submission that this is an urgent matter, with which I agree, I was prepared to accommodate the matter today.
BRIEF CHRONOLOGY OF THE MATTER
In order to understand, consider and determine the mother’s Application and the father’s Response, it is necessary to have regard to the chronology in this longstanding matter.
On 18 January 2022, when the matter was allocated to my docket, there was a Case Management Hearing at which I listed the matter for trial on 29 August 2022 with an estimated hearing time of 10 days. I made an order that the requirements of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) apply to cross-examination (“the s 102NA order”).
On 4 February 2022, I delivered ex tempore reasons on a Review Application by the mother to review an order made by a Registrar, which was dismissed. I ordered the mother's time with the child to be supervised by a supervisor nominated by the Independent Children's Lawyer in circumstances where the parties had been unable to resolve that issue between themselves.
The defended hearing, which I fixed on 18 January 2022, commenced on 29 August 2022 and proceeded over three days, between 29 and 31 August 2022. Cross-examination of the mother, who is also the applicant in the substantive proceedings for final orders, commenced but did not conclude.
By the third day of the trial, on 31 August 2022, counsel appearing on behalf of the mother and then the solicitors appearing on her behalf were given leave to withdraw. As the mother was then unrepresented and subject to the s 102NA order, which precluded her from cross-examining the father, I ordered that the further hearing of the trial be adjourned part-heard to a date to be fixed. I listed the matter for a Case Management Hearing on a date to be fixed before 30 November 2022, inter alia, to ascertain the readiness of the part-heard trial to resume. There was no appeal.
On 18 November 2022, at the Case Management Hearing, I ordered that the part-heard trial resume on 17 April 2023 until 21 April 2023 and then again on 26 April 2023 until 28 April 2023, if necessary. I delivered ex tempore reasons for judgment. Amongst the matters that I dealt with in that judgment, I granted the mother leave to make an oral application for me to recuse myself for apprehended bias, which I considered and dismissed. I also made a request for Victoria Legal Aid to reappoint a new lawyer on behalf of the mother as soon as practicable pursuant to the s 102NA order. There was no appeal.
On 6 December 2022, there was a further Mention of the matter. I made orders and delivered ex tempore reasons for judgment which provided for the child of the relationship to spend time and communicate with the mother on Christmas, on the child's birthday, and on the mother's birthday. The notation to those orders again reminded the parties that the final hearing was to resume part-heard on 17 April 2023 with an estimated hearing time of eight days. There was no appeal.
On 9 March 2023, at another Mention, I made orders and delivered ex tempore reasons for judgment in respect of which no appeal was brought within time. I ordered, inter alia, that a litigation guardian be appointed for the mother. Notations to those orders included a request that the litigation guardian to be appointed be in a position to assume the conduct of the trial on behalf of the mother at the resumption of the trial on 17 April 2023. There was a further notation that, notwithstanding the s 102NA order, Victoria Legal Aid had advised the Court on 7 February 2023 that it would not appoint any further legal representation on behalf of the mother and would be closing its file. The notation also stated that the mother disputed the reasons given by Victoria Legal Aid and that no finding had been made by the Court in that regard and that remains the case.
On 5 April 2023, an order was made that if the mother sought to propose any person to act as her litigation guardian, such person urgently file an Application in a Proceeding addressing the requirements in r 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) by 6 April 2023 and that it be thereafter listed.
On 11 April 2023, Senior Judicial Registrar Conlan adjourned all extant applications to 17 May 2023 for Mention before me and ordered the mother to comply, by 9 May 2023, with the orders I had made on 5 April 2023 in relation to the appointment of a litigation guardian. Notations to those orders included that the final hearing commencing on 17 April 2023 was vacated and that, during the adjourned period between 11 April 2023 and the listing before me on 17 May 2023, the mother would consider filing an affidavit from a proposed litigation guardian in compliance with r 3.14 and r 3.15 of the Rules, or making an application to discharge the order for the appointment of the litigation guardian and retaining new legal representation. There was no such application, and there was no review application in respect of the orders made by the Senior Judicial Registrar.
On 9 May 2023, an Application in a Proceeding was filed by Ms S, supported by an affidavit by her, seeking to be appointed as litigation guardian for the mother. Ms S is a friend of the mother and the mother today places emphasis on the fact that she is also a witness in the proceedings. On 17 May 2023, I made orders and delivered reasons for judgment ex tempore, and there was no appeal from that judgment. The orders provided that all extant applications remained listed for final hearing to resume part-heard commencing on 18 September 2023 but with a reduced estimated hearing time of five days. In relation to the application filed by Ms S, she was appointed as a litigation guardian on behalf of the mother without opposition by the father or the Independent Children's Lawyer and upon the Court being satisfied that she satisfied the requirements of the Rules. A further order was made that any application for recusal by me be filed and served on or before 7 June 2023.
On 8 June 2023, the mother filed an Application in a Proceeding which was amended on 23 June 2023 and then further amended on 17 July 2023. She sought, yet again, that I disqualify myself from involvement in the matter on the grounds of actual or apprehended bias. She further sought, inter alia, an adjournment of the part-heard final hearing and leave (from me) to “review” [sic] each of my prior orders, and the discharge of my order for the appointment of a litigation guardian. The application seeking leave to “review” was entirely misconceived.
On 5 September 2023, I made orders and delivered reasons for judgment from which, again, there was no appeal. I dismissed the mother's further amended Application in a Proceeding filed on 17 July 2023, including that I recuse myself and noted the matter was listed to recommence later that month.
On 18 September 2023, the part-heard trial resumed. I made orders and delivered ex tempore reasons for judgment dismissing an Application in a Proceeding filed by the mother's litigation guardian on 13 September 2023, which sought an adjournment and again sought leave to appeal the order appointing a litigation guardian.
The following day, on 19 September 2023, I made orders and delivered ex tempore reasons for judgment, on an oral application made by Ms S. I ordered that she be discharged from her appointment as litigation guardian for the mother and also that the proceedings, including all extant applications, be struck out. I granted the mother leave to apply to reinstate her amended Initiating Application filed on 3 January 2022 within 12 months and specified by what any reinstatement application needed to be accompanied. I also provided that, if the mother had not applied to reinstate her Initiating Application by 19 September 2024, the father would have leave to seek to proceed with his further amended Response to Initiating Application on an undefended basis. Notations to those orders included that, in the event the matter was to be re-listed for trial, it was part-heard before me.
Within the time prescribed by me for the mother to seek to reinstate her Initiating Application, she filed an Application in a Proceeding to that effect on 7 August 2024. That application was case managed by Senior Judicial / Deputy Registrars and was listed before me for Mention on 20 December 2024.
In circumstances where all parties were ready to proceed on 20 December 2024, I granted the relief sought by the mother: I reinstated the proceedings; I discharged the order requiring a litigation guardian for the mother; I ordered that the transcript of the hearing on 18 and 19 September 2024 be obtained and provided to the parties; and I listed the matter for directions before me on 27 February 2025, noting that consideration would then be given to:
·whether any brief updating evidence from the mother was required;
·whether s 102NA of the Act applied mandatorily or, if not, whether the s 102NA order should be discharged; and
·whether any expert evidence required updating.
I further required the parties to communicate and endeavour to settle a five-day trial plan by 20 February 2025.
MOTHER’S APPLICATION IN A PROCEEDING
On 20 February 2025, the mother filed the Application in a Proceeding which is the subject of these reasons for judgment. For the purposes of these reasons for judgment, I refer to each of the other judgments that I have delivered in these proceedings to date and, insofar as they are relevant, incorporate them herein.
At paragraph 5 of the mother's affidavit filed contemporaneously with her Application, she sets out what she says to be grounds for the part-heard trial to be declared invalid, including due to what she asserts to be a “fundamental defect” unable to be remedied. She refers to the s 102NA order and to her counsel and solicitors at trial in August 2022 having been granted leave to withdraw. She complains about the solicitor and counsel but correctly concedes at paragraph 17 that, as a result of the withdrawal of counsel followed by the solicitor, the trial was adjourned on a part-heard basis for her to obtain other legal representation pursuant to the s 102NA order. Therefore, she has no basis for complaint. The adjournment that was granted was granted for her benefit. As I have already referred to in canvassing the chronology of this matter, Notation C to my orders of 9 March 2023 referred to Victoria Legal Aid having advised the Court on 7 February 2023 that it would not appoint any further representation on behalf of the mother and would be closing its file, but that the mother disputed the reasons given by it and making perfectly clear that no finding had been made by the Court in that regard.
The mother asserts that, by reason of the withdrawal of her counsel and solicitor on 31 August 2022, as well as what she asserts to be their poor representation of her over the preceding two days, she was effectively “unrepresented”. I disagree; there was nothing in the conduct of her counsel to suggest that his representation of her was akin to no representation. She also overlooks the fact that all that primarily occurred was that, as the applicant, she was cross-examined. I did not, and do not, consider her to have been either incompetently represented by her counsel during cross-examination or unfairly or improperly cross-examined by counsel for the father. Had that been the case, I would have intervened. As for the solicitor, her involvement at trial was limited to seeking leave to withdraw in the aftermath of the withdrawal of counsel.
At paragraph 18 of her affidavit, the mother alleges a failure of her solicitor and barrister to adequately prepare her case, resulting in what she asserts to be a denial of a fair hearing and the opportunity to present her case. Again, the mother misunderstands what occurred over the three days that the trial proceeded in August 2022. Her trial material had been filed, and she was being cross-examined. Cross-examination of the father, his witnesses and the Family Report writer, on behalf of the mother, was several days away and, in any event, that was then adjourned by reason of the withdrawal of her lawyers. Therefore, I do not accept her arguments. In any event, I do not consider her application for the part-heard trial to be declared an "invalid" proceeding sustainable at law or on the facts.
The next basis of complaint by the mother is what she refers to as being “excessive delays and cross-examination”. At paragraph 24 of her affidavit, she refers to the delay of two and a half years since the trial was first adjourned part-heard on 31 August 2022 and asserts that it has severely impacted the ability of the parties to receive a fair hearing. By that, I infer that she refers to herself, not the father or the Independent Children's Lawyer, neither of whom make a similar submission. However, that submission overlooks the fact that the delay since then has been either for her benefit, even if she may not perceive it that way, or because of her.
Insofar as she asserts at paragraph 25 of her affidavit that I am unlikely to have any “accurate recollection of prior testimony” and that “[j]udicial recollection is critical for assessing credibility, demeanour, and inconsistencies in witness testimonies”, that submission overlooks the fact that I, as well as she, the father's lawyers and the Independent Children's Lawyer, can have the benefit of transcript. Additionally, I have my own contemporaneous notes to which to refer.
The mother refers at paragraph 26 of her affidavit to what she asserts (but I do not agree) to have been an incorrect recollection by me of something at the hearing on 20 December 2024, due to the passage of time that had passed in the intervening two years since 31 August 2022. However, that was a hearing for a discrete issue, namely whether or not the mother should be granted leave to reinstate her application and to have the order for a litigation guardian discharged. It was not the trial. I had other matters in my list that day. Nothing turns on this. As I have observed, when the trial resumes and concludes and judgment is reserved, I will have the benefit of the transcript and my notes.
In particular, insofar as the mother asserts at paragraph 26 that, at the hearing on 20 December 2024, I forgot the existence of the most recent Family Report, I have perused the transcript and cannot find any such reference. The only reference to a Family Report is at p.33 line 16, in an exchange with the father's lawyer, in which I said: “the family report is the family report, and the expert evidence is all in”.
In any event, even if I had been wrong, as the mother alleges, it is immaterial because, as I have already observed, it was only a hearing in relation to the reinstatement of the proceedings and the discharge of the litigation guardian.
Insofar as the mother refers at paragraph 28 to the legal practitioners consulted by her having been unable to discuss the case with her whilst under cross-examination due to r 26 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules2015 (NSW) (“Australian Solicitors’ Conduct Rules”), the concern she raises is not without merit. Rule 26 provides:
26.1A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless—
26.1.1the cross-examiner has consented beforehand to the solicitor doing so, or
26.1.2 the solicitor—
(i)believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference,
(ii)has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so, and
(iii)otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.
The issue can be remedied because I have the power to control proceedings within my Court and can grant the mother leave to discuss the proceedings with lawyers. Further, as the solicitor for the father points out, the prohibition to which the mother refers is subject to the exception in r 26.1.1 of the Australian Solicitors’ Conduct Rules, which provides for the cross-examiner consenting beforehand to the solicitor having discussions with the mother. The father’s solicitor has advised the Court that the father would so concede. Of course, it is a matter for the mother whether or not she chooses to avail herself of the leave that I propose to grant her and the concession made by the father. The only matter that might conceivably arise at trial is the weight that should be accorded to evidence that has been given after discussions with a lawyer. However, that is a matter for submissions and, ultimately, for determination by me.
The next issue that the mother raises is what she asserts to be excessive judicial intervention by me. As I have referred to above, I have twice dismissed recusal applications by her – first, on 18 November 2022 and secondly, on 5 September 2023 – and there has been no appeal from either of the dismissals of her recusal applications. Subsequently, no application was made arising out of the hearing on 18 and 19 September 2023, nearly one and a half years ago, and no appeal from the judgments delivered on those days have been brought. The only other hearing before me was that on 20 December 2024.
I do not understand the mother to be alleging actual bias; rather, I infer that it is apprehended bias. However, the tests for both actual bias and apprehended bias were recently restated by the Full Court in Sofia & Treacy (No 2) [2025] FedCFamC1A 10, as follows:
17.A finding of actual bias is a grave matter. The allegation must be distinctly made and proved, and should not be found lightly; cogent evidence is required: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]. The appellant must demonstrate that the earlier primary judge and/or the later primary judge were each so committed to a conclusion already formed as to be incapable of alteration, whatever arguments might be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.
18.The test for apprehended bias is uncontroversial; it is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11]. That is a two-step enquiry. First, the Court must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
In relation to the mother's complaint arising out of the orders made on 9 March 2023 for the appointment of a litigation guardian, as I observed earlier, that order was not appealed and the subsequent disqualification application was dismissed on 5 September 2023.
It is therefore to the recent hearing on 20 December 2024 that I turn my attention. The irony is that the mother succeeded in her reinstatement application that day, after I expressed some preliminary views to the solicitor for the father and counsel for the Independent Children’s Lawyer supportive of her application. After the matter was stood down briefly for them to take instructions, both the father and the Independent Children's Lawyer consented to the reinstatement of the proceedings and the discharge of the order for a litigation guardian.
Insofar as the mother refers to observations that I made about her treating psychologist, Mr D, I expressed concern that she was relying upon evidence from him, in circumstances where earlier evidence from him had founded the order for a litigation guardian in March 2023.
However, in circumstances where, perhaps surprisingly, neither the father nor the Independent Children's Lawyer sought an independent psychological or updated independent psychiatric assessment of the mother, the only evidence was that of Mr D, and the other parties consented, the Court was ultimately satisfied, on the basis of Mr D's evidence, to order the discharge the litigation guardian order.
Notwithstanding the mother's successful application on 20 December 2024, she nevertheless asserts at paragraph 52 of her affidavit that, on that day:
… Justice Strum rolled his eyes and shook his head in response to my statement that I wouldn't provide the father with personal details due to concerns for my safety. …
(Emphasis added).
I emphasise, for reasons which will shortly become apparent, the mother’s assertion that I rolled my eyes and shook my head when she would not provide the father with personal details due to concerns for her safety. She continues:
… When I raised this with [Justice Strum], he replied with words to the effect of, "I shook my head at you because I disagree with your submission".…
I conceded then, and I recall, that I shook my head.
The mother continues:
… For [h]is Honour to openly shake his head, making admissions of it and disagree with a litigant speaking of exercising their right to safety, particularly when that litigant is listed as the [aggrieved family member] on a current [family violence intervention order], raises significant concerns regarding [h]is Honour's ability to oversee matters regarding family violence.
The transcript refers to me agreeing that I shook my head and that I did so because I disagreed with her submission; however, the transcript also reveals that it had nothing to do with any statements by her relating to concerns for her safety, as she now alleges. The discussion with the mother arose in the context of the order for professionally supervised time between the child and her. Commencing at p. 17 line 40 of the transcript, she asserted that:
[MS CASSELL]: Your Honour, the contact service will not work with a litigant in person. That is a very common thread through ‑ ‑ ‑
HIS HONOUR: I don’t know whether ‑ ‑ ‑
[MS CASSELL]: ‑ ‑ ‑ professional contact.
HIS HONOUR: ‑ ‑ ‑ that’s correct, or not. I have never heard ‑ ‑
MS KOTZAPAVLIDIS: I don’t know, your Honour.
I then said to her at p. 18 lines 31–36:
Just listen. Please listen. This court deals with litigants in person far more often than this court would want to because, ultimately, it’s difficult being a litigant in person. I acknowledge that. But I can tell you, [Ms Cassell], I have not heard of supervision services – professional supervision agencies – it has never been raised before me in a case, that professional supervision agencies refuse to deal with litigants in person. …
The mother then said (p.18 lines 38–46):
Your Honour, I have raised this for the past three years with the courts. It’s a constant, with trying to find a professional supervisor. It’s also not in the best interests of [the child] when they only allow three sessions – three one-hour sessions. That does not fulfil the current orders. I have given every reasonable request and solution for time spent between [the child] and myself, and the father has denied it at every instance. As recently as November/December of this year, when Ms Kotzapavlidis has failed to mention to the courts that I had a list of people, I wanted confirmation from the father that he would allow time spent for Christmas in 2024, prior to the fishing exercise, that he wanted to vet any nominated supervisor.
I asked the mother what was wrong with the father vetting proposed supervisors. Her response to my question was (p.19 lines 3–5):
The father still has intervention orders on him. It is a safety issue for myself and anyone who is supporting time spend. You have just rolled your eyes at me, your Honour.
Her answer that there were intervention orders, to which the father was the respondent, was an unresponsive answer to my question. It was irrelevant.
Therefore, insofar as the mother asserts that I rolled my eyes and shook my head in response to the statement that she would not provide the father with personal details due to concerns for her safety, that is manifestly not what occurred on 20 December 2024. It was a discussion in relation to her assertion that professional contact services would not work with her as a litigant in person; her complaint that the father sought to “vet” other supervisors proposed by her; and my query as to what her issue with that was.
As I indicated then, her assertion that professional contact services would not work with her as a litigant in person is simply not the experience of the Court and was not the subject of any expert or corroborative evidence whatsoever.
Therefore, the mother’s assertion that I shook my head because she would not provide the father with personal details due to concerns for her safety or her right to safety is manifestly wrong. Rather, I shook my head because of her non-responsive response to my question regarding the father vetting supervisors that she proposed. That she had an intervention order against the father, as she asserted, was entirely irrelevant.
Insofar as she asserts that I rolled my eyes, the transcript of 20 December 2024 discloses that I disagreed with that, and that is also my recollection. The transcript records, at p.19 commencing at line 4, that there was the following exchange between the mother and myself:
[MS CASSELL]: … You have just rolled your eyes at me, your Honour.
HIS HONOUR: No, I didn’t. I shook ‑ ‑ ‑
[MS CASSELL]: You did. I just saw it.
HIS HONOUR: I shook my head at you.
[MS CASSELL]: And you rolled your eyes. I saw it.
HIS HONOUR: No, I didn’t. Well, [Ms Cassell], I shook my head at you because I disagree with your submission.
[MS CASSELL]: But you rolled your eyes and shook your head. Again, that’s showing prejudice against me, your Honour.
HIS HONOUR: Do you have an application to make, [Ms Cassell]?
[MS CASSELL]: I have made my application for the removal of a litigation guardianship that was put on me on 9 March 2023. I have made an application for the reinstatement of the family court hearing which is adjourned ‑ ‑ ‑
HIS HONOUR: Yes.
[MS CASSELL]: ‑ ‑ ‑ part heard from August of 2022. And I have made an application for the transcripts of every court date that has occurred since ‑ ‑ ‑
HIS HONOUR: No, you ‑ ‑ ‑
[MS CASSELL]: ‑ ‑ ‑ since I have not had conduct ‑ ‑ ‑
HIS HONOUR: [Ms Cassell] ‑ ‑ ‑
[MS CASSELL]: ‑ ‑ ‑ of my case.
Given her misapprehension or misstatement (it matters not which) at paragraph 52 of her affidavit of the reason for which I shook my head, I view her allegation that I rolled my eyes with even greater circumspection. In any event, even if I did roll my eyes, which I did not, she does not meet the “double might” test in Johnson v Johnson (2000) 201 CLR 488, as explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which was referred to by the Full Court in Sofia & Treacy (No 2) at [18]. There is no logical connection between the matters alleged by the mother (namely, shaking my head, which I did, and rolling my eyes, which I did not), and any feared deviation from the course of deciding the case on its merits. So much is manifest in that she entirely succeeded in her application before the Court that day to reinstate the proceeding and discharge the litigation guardian.
At paragraph 53 of the mother's affidavit, she deposes that I refused to adjourn the proceedings to allow an ongoing investigation by police into serious allegations. Again, I have read the transcript of the hearing on 20 December 2024 and cannot see any such reference or anything remotely akin thereto.
As I have referred to above, written submissions were also filed by the mother on 26 February 2025, supplementing her affidavit. I have read, and have had regard to, those submissions. There are a few other matters raised therein which require consideration. Under the rubric of what she asserts to be the “unlawful appointment” of a litigation guardian and a conflict of interest on that part of that person, the mother asserts at paragraphs 25 and 26 of her written submissions that:
25.On 17 May 2023, the Court appointed [Ms S] as litigation guardian, despite her being a listed witness in the adjourned part heard final proceedings. This created an irreconcilable conflict of interest, fundamentally compromising the fairness of the case.
26.The criteria provided at r. 3.12 of the [Federal Circuit Family Court of Australia (Family Law) Rules 2021] were addressed by [Ms S] in her affidavit, filed 9 May 2023. These were the only criteria provided, in sourcing a suitable person for the role.
At paragraph 27, the mother seeks to re-agitate the issue of the need for, and the appointment of, the litigation guardian, referring to Ms S's appointment being unopposed by both the respondent and the Independent Children's Lawyer, despite, inter alia, the parties all being aware that Ms S did not herself believe the mother required a litigation guardian.
What the mother overlooks, by omission or by commission, is that the application by Ms S was brought on behalf of the mother. The order for a litigation guardian to be appointed having been made, Ms S, the mother's friend and a witness for her at trial, came forward as a person who was prepared to undertake the role of litigation guardian. Therefore, nothing flows from the fact that Ms S’s appointment was unopposed by the father or the Independent Children's Lawyer, or the fact that the Court found that, on the evidence, she satisfied the requirements of the Rules. It is not for the mother to blame either the other parties or the Court for that. Indeed, in my reasons for judgment of 17 May 2023, I said as follows at [10]:
… I have before me today an Application in a Proceeding filed on 9 May 2023 by [Ms S] on behalf of the mother. She seeks one order, namely, that she be appointed as litigation guardian for the mother in these proceedings. … Neither the father nor the Independent Children’s Lawyer oppose the appointment of [Ms S]. In her affidavit filed 9 May 2023, [Ms S] relevantly she deposes that she meets the requirements of r 3.14 of the Rules, in that she is over the age of 18; she has no interest in this proceeding adverse to that of the mother; and she can fairly and competently conduct the proceeding for the mother. The father and the Independent Children’s Lawyer do not contend otherwise. … In circumstances where that application is unopposed, I shall therefore order that [Ms S] be appointed as the mother’s litigation guardian and that she file a Notice of Address for Service within seven days.
Insofar as, at paragraph 34 of the mother's written submissions, she refers to the most recent Family Report having been prepared in 2022 and now being outdated, that can easily be, and will be, remedied. An order will be made for an updated Family Report to be prepared by Ms R, who is an r 7 Family Report writer pursuant to the Family Law Regulations 1984 (Cth), limited to matters arising subsequent to her last report. In circumstances where the mother has spent little time with the child since then, it may be relatively short.
At paragraph 45 of her written submissions, the mother states that, during a hearing in July 2023, counsel for the Independent Children's Lawyer was apparently overheard in a public area of the Court making disparaging remarks about the mother and Ms S. She further states that, when this was raised by Ms S with me on the day, counsel admitted to the conversation but attempted to downplay its significance. There was, and has been, no application made for the discharge of the Independent Children's Lawyer arising from counsel’s comments, nor any application in relation to counsel continuing to appear. I do not infer, and the mother does not submit, that any comments uttered by counsel, unfortunate as they may have been, were in any way representative of the instructions he had from, or the views of, the Independent Children’s Lawyer.
At paragraph 48 of her written submissions, the mother complains that my apparent refusal at the time to allow her to submit an affidavit regarding the conduct of counsel constitutes a denial of procedural fairness and suppression of critical evidence. Counsel having admitted what was alleged against him, there was no need for the mother to file an affidavit.
I turn, finally, to the s 102NA order made on 18 January 2022. That order was the subject of some discussions on 20 December 2024, namely, whether it was in January 2022 and/or remained in December 2024, a mandatory or discretionary order. At [12] of my reasons for judgment of 17 May 2023 (Cassell & Kolar (No 5) [2023] FedCFamC1F 478), I said as follows:
The mother has made it abundantly clear to me that whilst the s 102NA order was made on a discretionary basis, even if it remained a discretionary matter, she would not seek that it be discharged, and at this juncture I would be reluctant to discharge it of Court’s own motion. …
I therefore have the mother's confirmation, as late as 17 May 2023, that the 102NA order was a discretionary order, pursuant to s 102NA(1)(c)(iv).
I have been told, and it appears to be common ground, that there are two intervention orders presently pending. First, an interim intervention order against the mother in favour of the father, which awaits a final hearing. Second, an order extending a final order obtained by the mother against the father. It is not contested that, before the expiration of that final order, the mother sought and was granted an extension of that final order, pending the final hearing of the extension application. An order until further order is an interim order, and I am told, without disagreement by the mother, that it is so styled by the Magistrates Court of Victoria, where the order was made. In other words, the order extending the final intervention order, pending the final hearing of the application therefor, is described as an interim order. Therefore, at present, there are in fact two interim orders and it is not mandatory for there to be a s 102NA order precluding cross-examination by or of the mother in person.
That is not to say that I could not discharge the discretionary s 102NA order I made on 18 January 2022, if I considered it appropriate to do so. I therefore asked the mother if she sought to discharge the s 102NA order, especially in case she is not legally represented when the part-heard trial resumes. She said that she does not seek to do so. I explained to her that, if she is unrepresented, she will not be able to cross-examine the father and therefore test his evidence. She nevertheless persisted in seeking to retain the order and that is a matter for her, whether wisely or unwisely so. I am satisfied that she understood the ramifications of the discretionary s 102NA order remaining on foot. It will be a matter for the mother. If she appears legally represented at trial, her lawyers will be able to cross-examine the father. If she appears self-represented, and she persists in seeking that the discretionary order remain on foot, she will not be able to cross-examine the father.
In the circumstances, the mother's Application in a Proceeding and the father’s Response thereto will be dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 11 March 2025
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