Kabir & Kabir (No 3)
[2022] FedCFamC1F 983
•12 December 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kabir & Kabir (No 3) [2022] FedCFamC1F 983
File number: CAC 2337 of 2019 Judgment of: GILL J Date of judgment: 12 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent seeks that the final hearing dates be vacated on the first day of trial – Where the instructing solicitor and counsel for the respondent have very recently come onto the record – Where legal representation is necessary in this matter because the parties are prohibited from personally cross-examining each other, pursuant to s 102NA of the Family Law Act 1975 (Cth) – Final hearing dates vacated in context of ensuring fair process to parties – Final hearing re-listed in early April 2023. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 12 December 2022 Place: Canberra Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: Inprivate Law Counsel for the Respondent: Mr Thomas Solicitor for the Respondent: Brightstone Legal Pty Ltd Solicitor for the Independent Children's Lawyer: Mr Robinson, Robinson McGuinness ORDERS
CAC 2337 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KABIR
Applicant
AND: MS KABIR
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
12 DECEMBER 2022
THE COURT ORDERS THAT:
1.Today’s trial date is vacated.
2.This matter is listed to trial for commence at 10.00 am for a period of four days on 11 April 2023.
3.It is requested that the Registry arrange for an interpreter to be available on each of the days.
4.This matter is adjourned to a date to be fixed before the Registrar for further procedural directions.
5.The parties are entitled to issue such subpoenas as are necessary for the proper preparation of the case, provided that none are made returnable later than 28 days prior to the scheduled commencement of the trial.
6.In the event that a party seeks to file supplementary material, then the party may make an application to the Registrar in order to do so with any such supplementary material to be filed no later than 28 days before the commencement of the trial and subject to the directions of the Registrar.
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 a pseudonym Kabir & Kabir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
I have received, as filed in Court today, an application to vacate the trial date. These are proceedings which had been set down for trial this coming week for a significant period of time. The advance listing of the trial was done in a manner to aid the matter to be properly prepared for trial.
As the trial approached, it became apparent that there were difficulties in securing representation for the mother in the proceedings. Representation, while desirable in general circumstances and one might think even necessary, became a matter that could not be done without as this case fell within the confines of s 102NA of the Family Law Act 1975 (Cth) (“the Act”), meaning that the parties were prohibited from personally cross-examining each other. Even if the case might have been able to be run otherwise than with legal representation in other circumstances, the absence of legal representatives would have meant that one or other of the parties would be unable to be cross-examined.
It may be observed that this is a case where there are diametrically opposed factual positions. Although a short marriage, and a short relationship, it may be seen that there are many, many directly conflictual factual allegations put by the parties as observed through their affidavit material. Those run a broad spectrum of allegations of family violence made by each against the other, and by each against the other of manipulation of the Court processes, primarily through manipulation of family violence claims. It is a fact heavy case and a case of factual complexity, particularly given its potential interaction with previous findings by the Court in relation to a series of contraventions the subject of a judgment delivered on 10 August 2020.
In less than a week and a half prior to the listed commencement of the trial, Brightstone Legal took on the representation of the mother pursuant to a s 102NA grant. Mr Zhao, who appears to be a principal of Brightstone Legal Pty Ltd, advises me that he took on the matter on the basis that counsel would be able to be engaged, he, having secured the services of an experienced barrister, Mr Thomas of counsel. Mr Zhao advises that he was personally available for only the first three days of this week for the trial of the matter. Mr Thomas, before me today, has indicated from an examination of the scope of the material in this case that he cannot consider himself to be adequately prepared for the case and should the case be called on, on that basis without adequate instructions and without the capacity to prepare the matter in the short time available, would consider himself bound to withdraw from the case. I accept the descriptions given by both Mr Thomas and Mr Zhao.
It was important that this matter be brought on to deal with the outstanding issues in relation to the children. They are matters that should not be left to lie. However, they can only be dealt with in a procedurally fair context, and that procedurally fair context, in this instance, dictates that there be proper representation for both of the parties. While the possibility of Mr Zhao running the matter was entertained, after hearing from Mr Zhao I am satisfied that he is not in a position either to conduct the matter or for the matter to be restricted to the three days for which he is available this week. Accordingly, the interests of justice dictate that unfortunately the trial of this matter will need to be vacated.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 12 December 2022
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