Greene & Mlakar
[2024] FedCFamC1F 158
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Greene & Mlakar [2024] FedCFamC1F 158
File number(s): NCC 3755 of 2021 Judgment of: SMITH J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – vacation of final hearing dates close to Trial – where child lives with mother and mother’s circumstances have fundamentally changed due to no fault of mothers. Legislation: Family Law Act 1975 (Cth) Pt VII Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 8 March 2024 by Microsoft Teams Place: Newcastle The Applicant: Litigant in person Solicitor-Advocate for the Respondent: Ms Rogers Solicitor for the Respondent: Koulouris & Associates Pty Ltd Solicitor-Advocate for the Independent Children's Lawyer: Ms Smith Solicitor for the Independent Children's Lawyer: Katie Smith Solicitor ORDERS
NCC 3755 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GREENE
Applicant
AND: MR MLAKAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The Final Defended Hearing commencing on Wednesday, 3 April 2024 for eight (8) days be vacated.
2.The matter be listed for mention on Wednesday, 3 April 2024 at 10.00 am by Microsoft Teams.
3.Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers, with the consent of the parties, to adjourn the mention if the applicant mother has not yet been appointed a lawyer.
THE COURT NOTES THAT:
A.The mother has separated from her new partner.
B.The mother’s circumstances have fundamentally changed and there is no evidence before the Court as to those circumstances.
C.The mother is on maternity leave and no longer able to afford private legal representation. The mother has been granted legal aid but not yet allocated a solicitor.
D.Certain significant evidence the mother was to obtain is now being obtained by the ICL but will not be available by the current final hearing date.
E.When mother is legally represented, the Court will make orders for updated material and the matter will be given priority for a further hearing date.
F.The Court will consider whether all witnesses are relevant to the real issues and may narrow the witnesses to be called and reduce the hearing time allocated.
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, Greene & Mlakar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter is listed before me for final hearing commencing on 3 April 2024 for the determination of parenting orders pursuant to Pt VII of the Family Law Act 1975 (Cth) (‘the Act’) with respect to the subject child, X (born 2013) aged 10.
In the last short period of time the applicant mother, Ms Greene (born 1986, aged 36) (“the mother”) has separated from her new partner, Mr B, and is now living alone with her three children. She is on maternity leave having recently had a child with Mr B.
The mother’s circumstances have fundamentally changed. Because of that she is unable to afford legal representation. She has been granted legal aid but has not yet been appointed a lawyer. She has been unable to prepare all the material she was allowed, by the orders, to prepare. There is also no evidence about her current, significantly changed circumstances, and what that may mean to her capacity to provide for and parent the child.
Further, one of these pieces of evidence the mother was to obtain was from the child’s treating trauma specialist, Ms C. The evidence of Ms C may go to the child’s disclosure of physical violence and the child’s mental health. The Independent Children’s Lawyer (“ICL”) has now sought to obtain that material as the mother, has become unrepresented, but indicated that the material is presently not available and will not be available by the current trial date. Given the nature of the serious allegations in the case and the consequences of findings either way, the material of Ms C will clearly be highly relevant and should be available.
In those circumstances, despite the fact that the Court is extremely reluctant to vacate final hearings this close to the date, the unusual circumstances of the mother’s separation from her new partner, her being on maternity leave, the absence of key evidence about her circumstances and from Ms C, where the mother has not yet been appointed legal representation through Legal Aid due to the short time frames involved, that unfortunately I am satisfied that matter cannot proceed.
In these circumstances I make the rare order of vacating the final hearing.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 14 March 2024
0
0
1