Kabir & Kabir (No 5)
[2023] FedCFamC1F 741
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kabir & Kabir (No 5) [2023] FedCFamC1F 741
File number(s): CAC 2337 of 2019 Judgment of: GILL J Date of judgment: 28 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application sought by Independent Children’s Lawyers – where the mother’s lawyers were granted leave to withdraw from proceedings – where the parties were subject to the provisions of s 102NA – whether it would be within the best interests of the children for the matter to proceed when the mother is self-represented Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 28 August 2023 Place: Canberra Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: JS Family Lawyers Counsel for the Respondent: Mr Spicer Solicitor for the Respondent: Christina Lam & Associates Counsel for the Independent Children's Lawyer: Ms Davis Solicitor for the Independent Children's Lawyer: 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:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.The application for adjournment is refused.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
This decision concerns whether the trial of the parenting proceedings should be vacated for a third time. The circumstances whereby this question arises are that the mother has this morning lost her legal representation for the trial. Through the duration of the proceedings the mother has instructed eight or so sets of lawyers, a number of those through the s 102NA scheme.
This morning her most recent lawyers sought, and were refused leave to withdraw from the proceedings. They contended the mother had lost confidence in them although the mother stated to the court that she wished for them to continue to act for her. Under those circumstances her legal representatives were forced to concede that the retainer had not been ended by the mother. A short adjournment was then granted following which those legal representatives pressed again that they be permitted to withdraw from the proceedings and asserted that there had, at that point, been a loss of retainer. The mother then confirmed to me in court that there had been a loss of the retainer while she raised claims that effectively she had been pushed into such a position by the conduct of the lawyers that took place following the standing down of the matters. I am at present unable to resolve what took place between the mother and her lawyers as there is not any direct evidence of such. However, on the basis that the retainer had been terminated, the lawyers were released from the proceedings.
The mother remains a person who is subject to the provisions of s 102NA that in this case prevent her and the father from personally cross-examining each other. Despite the loss of her lawyers the mother has said that she wishes to go ahead with the proceedings. Her preferred position is that the proceedings go ahead in part and deal with her application to relocate with the children to live in Sydney. To my mind that is not a matter that can be separated from the whole of the proceedings. It is entwined with the issues of risk that each party proposes the other poses to the children. Those issues of risk are required to be resolved to resolve the issue about who the children might live with and where it is that the children might live with that person. On giving of that indication the mother indicated that she would proceed with the trial of the matter in any event without legal representation and without the capacity to cross‑examine the father.
The father likewise said that the proceedings should continue.
The Independent Children’s Lawyer (“the ICL”) however, expressed legitimate concerns and opposition to the matter going ahead at this point. At its heart the concerns expressed by the ICL were that the court would not be able to determine the facts adequately to determine the best interests of the children given the asymmetry that would arise in the case in relation to the testing of what are diametrically opposed factual cases posed by each of the parties alleging abuse and/or neglect and/or risk posed by each of the parties towards the children. In opposing the trial going ahead the ICL called in the first principle of child related proceedings. That is, asserting that the needs of the children would not be properly met by deficits in the court’s capacity to make factual determinations, and called in aid the overarching purpose as set out both in the rules and in the Federal Circuit and Family Court of Australia Act, focusing on whether or not the just resolution of the proceedings would be compromised by going ahead.
The matters raised by the ICL are legitimate and powerful considerations. They observe the potential impact on the testing of the facts by the lack of representation that the mother now faces. In making submission the ICL expressed that this was a matter that was finely balanced against the consequences of further delay of the case, being a further delay occurring where the fault is as yet unattributed.
In that balance however, the position of the mother that the matter should proceed weighs heavily. It is her case as to what is in the children’s best interests that is most impacted by the lack of representation and the determination to go ahead. Yet conscious that she cannot cross‑examine the father and conscious that this may impact the facts that the court is ultimately able to find, she seeks to press on. It is under those circumstances that the matter should proceed. While the proceedings before this court are not wholly adversarial the determination of the party whose case is most prejudiced by going forward to continue nonetheless is consistent with principle 5 of the child related principles. Under the circumstances where the mother chooses and submits that I should go ahead to hear the matter, procedural fairness does not demand an adjournment.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 September 2023
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