Faldyn & Badenoch
[2023] FedCFamC1F 170
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Faldyn & Badenoch [2023] FedCFamC1F 170
File number: HBC 184 of 2019 Judgment of: MCGUIRE J Date of judgment: 16 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Applicant father seeks to adjourn the final hearing date on the basis that he no longer has representation pursuant to s 102NA of the Family Law Act 1975 (Cth) – Application opposed by the Respondent mother and Independent Children’s Lawyer – Application dismissed Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 16 March 2023 Place: Hobart Solicitor for the Applicant: Litigant in person Counsel for the First Respondent: Ms Scolyer Solicitor for the First Respondent: Murdoch Clarke The Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Mooney S.C. Solicitor for the Independent Children's Lawyer: Legal Aid Commission of Tasmania ORDERS
HBC 184 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FALDYN
Applicant
AND: MS BADENOCH
First Respondent
MS FALDYN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
16 MARCH 2023
THE COURT ORDERS THAT:
1.The applications filed by Mr Faldyn on 13 February 2023 and 15 February 2023 are dismissed.
2.The expert witness Dr J is permitted to give her evidence by Microsoft TEAMS at the final hearing of this matter in the Federal Circuit & Family Court of Australia at Hobart commencing Monday 27 March 2023 before His Honour Justice McGuire.
3.Leave be given for the following documents under subpoena to be released for inspection and copying to the parties:-
(a)N Medical Centre Medical Records Stored by the Court;
(b)P Hospital - Paediatric outpatients Medical Records Stored by the Court;
(c)Q Medical Centre Medical Records Stored by the Court;
(d)R Medical Centre Medical Records Awaiting production;
(e)2022 T Clinic Medical Records Stored by the Court;
(f)S Clinic, U Psychologist Medical Records Stored by the Court; and
(g)V Hospital Medical Records awaiting production.
IT IS NOTED
4.The final hearing is commencing in the Federal Circuit & Family Court of Australia at Hobart before Justice McGuire commencing 10.00am Monday 27 March 2023 for an estimated hearing time of five (5) days.
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 of Faldyn & Badenoch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
The substantive application is a parenting application. The matter is listed for trial in the Federal Circuit and Family Court of Australia Division 1 at Hobart as soon as Monday, 27 March of this year. I now have an application before me by the now self-represented father, Mr Faldyn, for an adjournment of the proceedings. The application, as I understand it, is for an indefinite adjournment. It is not, either in its application or in the submissions I have heard today, limited in any sense to a time period. The application is opposed by the mother and opposed by the Independent Children’s Lawyer.
The difficulty that confronts Mr Faldyn here and the background to his application for an adjournment is that the provisions of section 102NA of the Family Law Act 1975 (Cth) (“the Act”) have previously been enlivened in favour of Mr Faldyn. The relevant background fact is that Mr Faldyn carries a conviction in respect of the mother, Ms Badenoch, that enlivens the mandatory prohibition on cross-examination. Her Honour Judge Taglieri appropriately, and where the mandatory provisions apply, made an order under section 102NA of the Act in favour of Mr Faldyn. The practice outside the auspices of this Court is that the order is then administered by a relevant Legal Aid Commission, in this case the Legal Aid Commission of Tasmania. It appears that Mr Faldyn appropriately engaged with the Legal Aid Commission. A lawyer was appointed. That relationship broke down. I am not fully aware of the reasons, and Mr Faldyn, quite properly and as was his right when asked by me, did not wish to disclose those reasons. The fact is the important point that the relationship broke down.
Mr Faldyn’s affidavits disclose, a course of communication between he and the Legal Aid Commission, where they take different views on the process. They are entitled to do that. My understanding is that the time limits for a review of a decision not to allocate an alternative representative expired, but on three separate occasions Mr Faldyn was invited to make a fresh application for legal representation under the scheme. He has declined to do so. He philosophically takes a different view than the Legal Aid Commission. That is the stalemate, the impasse that has been reached.
The difficulty that that provides is that Mr Faldyn says, and I accept what he says at face value, that he has no alternative representation as, for example, by way of privately funded representation. He is not in a position to pay for a solicitor and/or barrister. As I have said, he has not chosen to take up the invitation for a fresh application, and he is unrepresented with the trial imminent. That difficulty imposes some mandatory restraints on the Court and on Mr Faldyn: that is he is not permitted to directly cross-examine Ms Badenoch. The application, as I have said, does not offer any alternatives. I infer from the submissions of Mr Faldyn that he wishes to take up the issue of the positions of the various Legal Aid Commissions in Australia in respect of the administration of the Act and specifically section 102NA, and I expect that he will do so in due course, but not before 27 March of this year.
The difficulty, and Mr Faldyn has succinctly put the difficulty, at common law there is a right to cross-examine. It is a fundamental right in litigation and a well-recognised, important part of the process. Unfortunately for Mr Faldyn, we are not sitting in the common law jurisdiction. The family law in this country is administered by statute, namely, the Family Law Act 1975 (Cth), and I am bound by the provisions of the statute and, in this particular instance, as I have said, the mandatory provisions under the Act as to the prohibition on cross-examination. I understand and I respect the position that it leaves Mr Faldyn in, but I also must consider the position of the other party.
This matter has been listed for trial for some time. The mother argues, and with some support from the expert documents, not yet tested, of course, that she is a person of some vulnerability. As I have said, there has been a conviction in respect of Mr Faldyn, and quite frankly, as a general rule, she, as much as Mr Faldyn, has the right to have her litigation determined and finalised. The difficulty I have here is where the adjournment is requested, I am unable to understand the utility of an adjournment in that an adjournment might be ongoing, and in that sense the weight that I attached to the submissions of counsel and Mrs Mooney, who referenced the expert material on the impact to the mother and the child of an adjournment of an unknown duration, carry more weight. In all of the circumstances, where to grant the adjournment would leave this entire matter in abeyance and where Mr Faldyn has been offered and invited to make a fresh application and where the functions of the administration of the Act by the government bodies is out of my control and province, I refuse the application for an adjournment. The matter remains listed for trial, and the trial will commence on 27 March 2023.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Mcguire. Associate:
Dated: 20 March 2023
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