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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 170
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) considered an application for an adjournment of a final hearing in a parenting matter between Mr Faldyn and Ms Badenoch. Mr Faldyn, who was self-represented, sought an adjournment on the basis that he no longer had legal representation due to a breakdown in his relationship with the lawyer appointed under s 102NA of the Family Law Act 1975 (Cth). This section provides for a mandatory prohibition on cross-examination in cases where a party has a conviction for violence against the other party. The application was opposed by the mother and the Independent Children's Lawyer.

The court had to decide whether to grant the adjournment, considering the statutory prohibition on cross-examination, the impact of an adjournment on the mother and the child, and Mr Faldyn's lack of alternative representation. The court noted that while Mr Faldyn had the right to cross-examine, this right was restricted by the statutory provisions. The court also considered the potential harm to the mother and the child of an indefinite adjournment. The court concluded that granting an adjournment would leave the matter unresolved indefinitely, and Mr Faldyn had been offered the opportunity to apply for new legal representation, which he had declined.

Justice McGuire dismissed the application for an adjournment, finding that there was no utility in granting an indefinite adjournment. The court held that the matter would proceed as listed, with the final hearing commencing on 27 March 2023. The court also granted leave for the Independent Children's Lawyer to call an expert witness via Microsoft Teams and allowed the release of certain medical records to the parties. The final hearing is scheduled to begin on 27 March 2023 and is expected to last for five days.

The court's decision emphasised the importance of adhering to statutory provisions and the need to balance the rights of all parties involved, particularly in cases involving vulnerable individuals. The dismissal of the adjournment application highlights the court's commitment to ensuring that family law matters are resolved in a timely and fair manner, even in the face of complex and challenging circumstances.

Orders