Kalinic & Franz (No 2)
[2023] FedCFamC1F 1026
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalinic & Franz (No 2) [2023] FedCFamC1F 1026
File number(s): BRC 10946 of 2021 Judgment of: JARRETT J Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn trial – Applicant did not comply with trial directions – Applicant alleged mental health prevented her from filing material – Applicant alleged fear of racial incidents prevented her from filing material – Applicant sought adjournment to obtain expert report into online harassment – Where evidence does not establish applicant was hindered in filing trial material – Where applicant has had ample time to obtain expert report – Adjournment refused Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 62G, 121
Cases cited: Harricks & Harricks [2014] FCCA 2724
Isles & Nelissen (2022) 65 Fam LR 288
Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 27 November 2023 Place: Parramatta Counsel for the Applicant: Mr North Solicitors for the Applicant: Salerno Law Solicitors for the Respondent: Ramsden Family Law Solicitors for the Independent Children’s Lawyer: Smithson Lawyers Gold Coast ORDERS
BRC 10946 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KALINIC
Applicant
AND: MS FRANZ
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 17 November, 2023 be dismissed.
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).
REASONS FOR JUDGMENT
JARRETT J:
This is an application to adjourn a trial listed to commence on 18 December, 2023.
The proceedings commenced on 18 August, 2021 when the applicant, Mr Kalinic (the respondent to the present application) filed an initiating application seeking parenting orders in respect of the parties’ three children, X (aged 14), Y (aged 13) and Z (aged 5). He also sought property adjustment orders. He sought orders that the children live with him and they spend alternate weekends with the respondent (the applicant in the present application), Ms Franz. When he commenced the proceedings, the children were living with Ms Franz and spending no time with him.
Ms Franz did not file a response to the application until 12 November, 2021. In it, she sought property adjustment orders and parenting orders whereby the children would live with her and spend no time with Mr Kalinic.
An interim application was listed for hearing before a Senior Judicial Registrar on 22 December, 2021. It was largely resolved by consent orders providing for the children to live with Ms Franz. A number of procedural orders were made for both the parenting and property adjustment applications, including relevantly, an order for the appointment of an independent children’s lawyer, a family report and a single expert to prepare psychiatric assessments in relation to the psychiatric health of each of the applicant and respondent. Argument ensued about the time that the children should spend with Mr Kalinic, but ultimately an interim order was made that they spend no time with him.
Relevantly, a report pursuant to s62G(2) of the Family Law Act 1975 (Cth) was prepared by Mr H and filed on 9 June, 2022. An affidavit of Dr J, a consultant psychiatrist, setting out psychiatric assessments in respect of each of the parents was also filed on 9 June, 2022.
On 19 October, 2022 Mr Kalinic lodged an application in a proceeding seeking an adjustment to the orders for parental responsibility and, amongst other orders, an order for the children to spend supervised time with him.
The application was listed for hearing on 28 October, 2022 at the same time as a call over of the proceedings was to be held by the managing judge of the Federal Circuit and Family Court of Australia (Division 2) where the proceeding was then resident. Ms Franz did not appear on 28 October, 2022 and the court made location orders directed to the Department of Children, Youth Justice & Multicultural Affairs (Queensland) and the Department of Education (Queensland) for the purposes of locating the whereabouts of the children. A further location order was made on 30 January, 2023 along with some other orders in relation to the property adjustment proceedings. Again, Ms Franz failed to appear at that hearing.
On 1 March, 2023 on their application in a proceeding lodged on 22 February, 2023 (but filed on 7 June, 2023) the court granted the children’s paternal grandparents leave to intervene in the proceedings. Again, the respondent did not appear before the court on that day.
That application came before the court on 22 March, 2023 when a further location order was made directed to the Department of Families, Fairness and Housing (Victoria). There was no appearance by the respondent at that hearing.
On 30 March, 2023 the intervenors filed an application in the proceeding seeking orders for the children to live with them and for them to have sole parental responsibility for them. They sought the issue of a recovery order for the children. On that day the court ordered that the previous orders with respect to the parenting of the children concerning with whom they would live, with whom they would spend time and the allocation of parental responsibility were “dismissed”. An order was made providing the paternal grandparents with sole parental responsibility for the children and for the children to live with them. An order was made for the children to spend time with Mr Kalinic as might be agreed between the paternal grandparents and him and the independent children’s lawyer from time to time. Ms Franz did not appear at that hearing. A recovery order was issued for the recovery of children.
The children were recovered and placed in the care of the paternal grandparents. That seems to have goaded Ms Franz into action. On 5 April, 2023 (the day the children were recovered from her) she filed a notice of address for service, followed on 28 April, 2023 by an application in a proceeding seeking orders that the children be returned to her care. Both Mr Kalinic and the paternal grandparents filed responses to that application and it was listed for hearing on 16 May, 2023. On that day, an order was made for the children to communicate with Ms Franz by electronic means and the application was otherwise adjourned and the principal proceeding transferred to the Federal Circuit and Family Court of Australia (Division 1).
The proceedings came before me on 10 July, 2023. On that day all the parties save for Ms Franz appeared. Procedural orders were made and an order was made listing the matter for hearing at 10.00am on 18 December, 2023. Trial directions were made requiring the applicant to file his affidavits of evidence-in-chief by 18 September, 2023, the first respondent to file her affidavits of evidence-in-chief by 9 October, 2023 and for the second and third respondents to file any evidence they wished to rely upon by 23 October, 2023. The outstanding application in a proceeding filed by Ms Franz on 28 April, 2023 and the responses thereto were adjourned for hearing to 2.15pm on 2 August, 2023.
On 2 August, 2023 the applicant and first respondent each appeared by counsel. The second and third respondents appeared in person and independent children’s lawyer appeared in person. After hearing argument, I ordered that all previous parenting orders be discharged, that the children live with Mr Kalinic and that the two younger children spend time with Ms Franz supervised at an agreed therapeutic contact centre and in the absence of agreement, at a nominated place. Orders were made, by consent, concerning various aspects of the property litigation. The paternal grandparents informed me that they no longer wished to participate in the proceedings. They filed a notice of discontinuance on 4 August, 2023. No party, at that time, raised any difficulty with the trial that was listed on 18 December, 2023.
Mr Kalinic filed his affidavit of evidence-in-chief on 13 September, 2023 pursuant to the trial directions. Ms Franz has not filed any affidavits of evidence-in-chief (either by herself or any witnesses upon which she intends to rely). On 17 November, 2023 she filed the application in a proceeding to which these reasons relate and by which, she seeks an adjournment of the trial.
In support of her application, Ms Franz relies upon an affidavit sworn by her and filed on 17 November, 2023. In the outline of submissions delivered on her behalf, she also seeks to read an email sent to the court on her behalf on 17 November, 2023. I have not read that email, it not being sworn evidence before me.
Notwithstanding Ms Franz’s written submissions to the effect that Mr Kalinic does not oppose the adjournment, counsel for Mr Kalinic informed the court that the adjournment of the trial was opposed. That was despite him having filed no response to the application in a proceeding. So too, the independent children’s lawyer opposed the adjournment although no response to the application in a proceeding was filed by her.
Ms Franz submits that an adjournment is necessary to afford her procedural fairness “in order to respond to the report of the Single Expert (yet to be released) and to depose to further evidence relating to her Parenting Application”. Despite the allocation of final hearing dates as long ago as 10 July, 2023 and the making of trial directions on that day, Ms Franz argues that by reason of her “current mental health condition” which significantly impairs her ability to participate meaningfully in the proceedings, she requires an adjournment.
According to her written submissions, Ms Franz’s “position is encapsulated, such that if the Court were to accept (noting s 140 of the Evidence Act, and Isles & Nelissen (2022) 65 Fam LR 288) that the evidence of the Mother:
(a)That she lives with CPTSD;
(b)That the Mother is experiencing an avalanche of abusive and malicious hacking;
(c)That the result of the abusive and malicious hacking has caused her considerable distress leading to her hospitalisation on two occasions;
(d)That a medical practitioner has provided evidence that a Final Hearing shortly after her hospitalisation would be detrimental to her health;
(e)That the Mother has experienced family violence perpetrated by the Husband;
(f)That the Police have been unable to determine the source of these attacks;
(g)That further expert evidence is required to determine the source of those attacks;
(h)That the Court would benefit from the release of the cyber expert report and sufficient time for the parties to ask any clarifying questions as they are entitled to do by the Rules;
(i)That the Court is mandated to consider the safety of a party and the effect of family violence on that party;
then the Court should grant the relief sought by the Applicant in this Application”.
Ms Franz’s case is that she has “Complex Post Traumatic Stress Disorder” which she claims is the result of experiencing “a pattern of family violence” perpetrated by Mr Kalinic over “several” years. She gives no evidence of what it is that she contends was the family violence that she endured over “several years”. She says that she was diagnosed by Dr L, psychiatrist, with “complex Post-Traumatic Stress Disorder”. In that respect, it seems that following the execution of the recovery order on 5 April, 2023 Ms Franz was admitted to the health unit at the K Hospital with a diagnosis of situational Stress Disorder which had been precipitated by the execution of the recovery order. There is a letter from Dr L in the evidence. It is dated 13 April, 2023 and after recording what it is that Ms Franz said to Dr L, records this:
This clinical picture suggests a diagnosis of Complex PTSD. The Onset of this disorder is difficult to date. It is closely linked to the harassment she describes from her husband and has been present for at least a few years. She will require medications at present she takes [a medication] which can be prescribed to her GP and she will also see a clinical psychologist for ongoing […] Therapy after her discharge from this Unit. There is no psychiatric reason at all that I can determine why she cannot instruct his solicitor and in fact care for her children.
The timing of this letter is important because Ms Franz’s present solicitors came onto the record upon filing a notice of address for service on 5 April, 2023 and so Ms Franz and her lawyers have known of the diagnosis from a point well before the proceedings were set down for trial.
Ms Franz deposes that two psychologists, Ms M and Ms N considered that her “symptoms and history are consistent with this diagnosis”. I have a report from Ms M in evidence before me annexed to Ms Franz’s affidavit filed on 17 November, 2023. Ms M considers that Ms Franz also has anxiety, dissociation and moderate depression, although these conditions do not appear to have been diagnosed by a psychiatrist. The terms of Ms M’s report make it clear that her assessment is based upon the information reported in the therapeutic sessions with Ms Franz and on collateral information that was made available to her. Not all of that collateral information is before me.
The evidence makes it clear that it has been Ms Franz’s case throughout the proceedings that she has been the victim of considerable historic and ongoing family violence at the hands of Mr Kalinic, although the evidence on the present application gives no specificity to her allegations. The allegations are denied. I have what is generally recorded in Ms M’s report, but that is at such a general level as to be unhelpful. At best is the following deposed to in her affidavit:
15. When I recall memories and images of [Mr Kalinic], I feel stressed, as if I am living out those experiences again, and experience physical symptoms including agitation, restlessness, breathlessness and my hands tremble. I also experience symptoms of anxiety, including feeling on edge and find it difficult to wind down. I often scared and touchy. I startle easily with loud noises which trigger me. I also have a lack of motivation and feel low at times and find it difficult to concentrate. I blame myself and have negative beliefs about myself, others and the institutions I feel should have protected me and investigated my reports thoroughly and competently, particularly, the Queensland Police.
Ms Franz swears that she “became extremely distressed when I received correspondence from [Mr Kalinic] or his lawyer regarding the family law dispute” although she does not say when that was received. She swears that “Similarly, when I receive correspondence from my lawyers I would at times become highly stressed and upset. I felt incapacitated and frozen and was unable to respond to correspondence, file documents, give my lawyers instructions or otherwise engage in the proceedings as I believed my life and that of my children was in danger”. Again, she does not say when or how often this occurred, but it could not have been in the period following her admission to the K Hospital because the following occurred soon thereafter:
·5 April, 2023 lawyers filed a notice of address for service for her (presumably on instructions);
·28 April, 2023 lawyers filed an application in proceeding, an affidavit (sworn by Ms Franz on 28 April, 2023), a parenting questionnaire and a notice of child abuse, family violence or risk for her;
·15 May, 2023 lawyers filed an affidavit of Ms O on behalf of Ms Franz;
·8 June, 2023 lawyers for Ms Franz filed five notices of request to inspect;
·10 July, 2023 lawyers for Ms Franz filed a costs notice;
·19 July, 2023 lawyers for Ms Franz filed a notice of intention to withdraw as lawyer and a notice of ceasing to act;
·24 July, 2023 Ms Franz filed an affidavit of 169 pages in length and sworn by her on 22 July, 2023;
·28 July, 2023 new lawyers for Ms Franz filed an amended response to an application;
·31 July, 2023 lawyers for Ms Franz file an Outline of Case (Interim Hearing);
·2 August, 2023 Ms Franz files a notice of address for service, effectively becoming self-acting;
·18 August, 2023 Ramsden Lawyers files a notice of address for service on behalf the respondent;
·17 November, 2023 lawyers for Ms Franz filed an application in a proceeding and an affidavit deposed by her on that day (51 pages in length).
Ms Franz has continued to consult Ms M. She also consults a psychiatrist, Dr P, apparently. I have no evidence from either Dr P or Ms M.
The collateral information given to Ms M largely consists of material filed in these proceedings, including the family report and the affidavits filed by Ms Franz. No leave pursuant to s 121 of the Family Law Act 1975 (Cth) appears to have been given to Ms Franz to disseminate that information to Ms M. Moreover, the affidavits of Mr Kalinic and his parents filed in the proceedings were not provided to Ms M. In addition to that material there is a report from Ms N, a psychologist, a report from a child safety officer and the letter from Dr L to which I have already referred.
After recounting Ms Franz’s treatment administered in weekly sessions, Ms M opines:
Given the chronic nature of [Ms Franz’s] reported domestic violence and abuse within her former marriage, along with the on-going abuse, her prognosis is guarded and she is likely to remain with some Post-Traumatic Stress Disorder symptoms, despite psychological and psychiatric treatment. Furthermore, on-going abuse, litigation, and separation from her children are likely to contribute to on-going PTSD, low mood, and anxiety and panic symptoms.
Further, Ms M opines:
There is no psychological reason that [Ms Franz] cannot care for herself or her children.
Ms M’s report is dated 25 August, 2023, so after the trial directions in this case were made. There is no suggestion in the report that Ms Franz is bereft of capacity to give instructions to lawyers and the history of her engagement in the proceedings since the children were recovered from her tells against that proposition.
One of the pieces of collateral information relied upon by Ms M was a report prepared by a Ms N, psychologist. I have a copy of Ms N’s report dated 14 May, 2023. It is a curious document. Paragraph 1.1 of the report records that the report was prepared at the behest of Ms Franz (then known under another surname) who was seeking “psychological assessment and reporting related to criminal proceedings which have impacted her custody of her children”. The report records that she is “due to attend court […] on charges [for multiple offences] in Queensland.” It also records that she has “upcoming proceedings in the Federal Circuit and Family Court of Australia, relating to the custody of her children.” Aside from what appears in her report, there are no details of the criminal proceedings referred to by Ms N before me.
In oral submissions, significant (although not the only) emphasis was placed upon the need to investigate what is described as “ongoing harassment” of Ms Franz by Mr Kalinic or others at his bidding in the form of “severe hacks and malicious attacks to my mobile phone, emails, social media accounts, and the false reports to the police, that continue to cause me to change my email address and mobile phone number”. However, the only evidence of this is:
·4 May 2023 Ms Franz believes someone set up an imitation of her Facebook profile under a false name with a post stating “[Ms Franz] you f****** s*** I promise you the way you’re going to d** will be with a b***** to the head. Look everywhere when you leave your h****. Your kids [X] [Y] and [Z] are not s*** with you. #[…] #[…] #[…] @[MsFranz] @[…]”;
·17 June 2022 the cover photo on her Facebook account was updated without her knowledge and “shortly afterwards” a comment was posted on the photo by a person unknown to Ms Franz but described as Mr Q stating: “Very nice must have money Do you choose your next victim I mean boyfriend by their tax return or ask for 3 bank statements and 3 months of payslips? Coincidence all your bfs are cashed up?”;
·6 July 2023 Ms Franz says that she realised that her Facebook account had been taken over by a “Test User” which “compromised my Facebook account. This has happened on several occasions previously”, although she does not say when, on how many occasions or in what circumstances;
·12 September, 2023 Ms Franz’s husband, Mr R, received a number of emails at 2.36am New Zealand time, or 12.36am Australian Eastern Standard Time, that somebody had attempted to change his Facebook password. The evidence does not suggest that they were successful;
·8 October 2023 Ms Franz received text messages from her phone provider that someone was attempting to access her personal details. She says that she also received an email from Facebook that “someone was trying to create an account with my email address. Again, the evidence does not suggest that they were successful;
·11 October 2023 Ms Franz received text messages from her phone provider that someone was attempting to access her personal details.
According to her affidavit, these six episodes are the basis for a submission that she is currently experiencing a “deluge of harassment, intimidation, threats, and online attacks, which are continuing”. Not one text message, email, screen shot or other piece of corroborative evidence is produced to support this submission. There is no evidence of the terms or nature of the intimidation, threats, and online attacks said to have been occurring.
In addition to the “digital harassment”, Ms Franz points to contact with the police, instigated she says by Mr Kalinic or others on his behalf, which she has found harassing. In particular she says:
·In mid-2023 she and her husband were awoken at around 4am with eight police officers who informed her that the police were notified of gunman on her lawn attempting to enter her house. She says that there was no gunman and she had no involvement in the making of these reports;
·In mid-2023, the police again attended her home and informed her that they had been notified of a little girl screaming for her safety and her life in her home. She says that there were no children in her home and her husband’s daughter was away at a camp. She says that she had no involvement in the making of these allegations;
·Shortly thereafter (date unspecified), police attended her home again as they had received a report that there was a dead body on the lawn, but there was not;
·On another occasion (date unspecified), the police attended her home and informed her that they received a notification that Mr S was planning a terror attack;
·In late 2023 police in New Zealand spoke to Ms Franz and her husband about an allegation that they were sexually abusing Mr S’s children.
Ms Franz complained to the police about the online harassment and alleged hacking of her social media accounts and mobile telephone. In late 2023 Officer T of the New South Wales Police notified Ms Franz that he is “of the view that police have conducted a thorough investigation with all lines of enquiries being exhausted without an offender being identified. As a result the investigation has been suspended which I understand you were advised of.”
Ms Franz swears that “the trauma of the police’s inability to ascertain the source of this harassment led to my admission to hospital in late 2023 as I had a panic attack following receipt of this correspondence”. Annexed to her affidavit is what appears to be a discharge summary from the Emergency Department of perhaps the R Hospital. It records an “Admission Time” as late 2023 and “Discharge Time” a day later and a diagnosis of “PTSD”, although the basis of that is not clear. The notes record:
History and Examination
background complex PTSD. Complex social situation with threats and distressing messages from ex-husband (in Australia).
seen by CRS – discharged, no immediate safety issue.
Declined social work/women’s refuge input etc.
Summary and Recommendations
[Ms Franz] please follow-up with your GP for review of ongoing PTSD symptoms +/- medication review.
Ms Franz swears:
27.Prior to my admission, I went with my mother in law to [City U] police station to try and hand over my phone to be looked into by forensics. After seeing the screenshots and going through my phone, the two police officers verbally advised that in their opinion the phone is "obviously hacked", however as this case is outside of their jurisdiction they were unable to investigate further or take it in for a formal forensic test.
28.Police further noted that they “have been sharing files notes and information with NSW police, but NSW police advised that it is untraceable as it comes from VPNs”.
29.NZ police state that they can be contacted for their interview notes care of [City U] Police Station, […] referencing [Ms Franz] and [Ms V] interviewing […].
30.The Police repeatedly noted that the hacking on the phone was "incredibly sophisticated". Their advice was to put it in flight mode and turn it off, do not use it, and instead move to a "dumb" phone (with no internet capabilities). While this might still be listened in on by someone with the right capabilities, it removes the harm of online access or access to video via the camera.
31.As per their advice I have avoided using my iPhone as much as possible.
Ms Franz swears that she was “hospitalised” in New Zealand in late, 2023 “in circumstances where the harassment became unbearable and I had what I would describe as a panic attack”. She gives no particulars of the harassment that precipitated this hospital visit. She annexes to her affidavit a letter from a doctor that she saw in New Zealand “following my admission and discharge from hospital”. Although that letter references “recent Emergency Department attendances regarding her mental health”, it does not refer to “admissions”. Further, the letter suggests that she “requires Psychiatric Team Assessments” and is awaiting “Specialist Psychiatric input”. Just how that sits with her other evidence about ongoing regular and frequent psychological treatment with Ms M and review by a psychiatrist in Australia was not explained in submissions.
Ms Franz argues that she has been “delayed in filing my material in circumstances where the frequency of these events have severely impacted upon my ability to work with my solicitors in preparing expert evidence to the Court”. I do not accept this submission. I have set out above the matters upon which she has relied in her evidence to make good the submission. There are six instances involving her social media accounts or mobile telephone accounts to which she has referred. Of those, only three have occurred since the trial directions were made. Across the same period, there have been five engagements with police who have attended at her home unexpectedly, but only two or perhaps three have occurred since the trial directions were made. Apart from the bald assertion that these matters have interfered with her case preparation and her ability to give instructions to her lawyers, there is no evidence to support that conclusion. The psychological evidence relied upon by Ms Franz suggests that she is not so debilitated that she cannot care for herself or her children and the chronology I have set out above demonstrates that she has been able to instruct lawyers to prepare material and attend court since her children were recovered from her.
Concerningly, there is no evidence from her lawyers to the effect that they have experienced difficulty obtaining instructions from Ms Franz at any time let alone since the trial directions were made in July, 2023. There is no evidence of attempts to contact her that have gone unanswered for example.
To the extent that it is suggested that time is needed to engage an appropriate forensic expert to undertake investigations that might lead to identifying those responsible for “hacking” Ms Franz’s social media accounts and mobile telephone, there is no evidence to suggest that such an expert has been identified or the timeframe that might be required to undertake the necessary investigations, or even if they are likely to be fruitful. Moreover, given that these allegations seem to be longstanding and given that Ms Franz’s current lawyers have been in the case at least since April, 2023, (although they came off the record for a short time) there is no explanation of why these investigations were not undertaken sooner.
Ms Franz argues that an adjournment is necessary to afford her procedural fairness. However, all parties are entitled to procedural fairness. Here, each has had the same opportunity to advance their respective cases. The reasons why Ms Franz has not done so remain obscure. Her avowed reasons are not made out in the evidence relied upon in this application.
Ms Franz submits another facet of the procedural fairness she is to be afforded is the opportunity to respond to the report of Mr H. In that respect, an update of Mr H’s previous report is in the process of preparation. As is often the case, when the trial directions were made, it was anticipated that the parties would file their evidence-in-chief before receipt of the updated family report. As the independent children’s lawyer submits, the orders of 10 July, 2023 specifically provide that the parties are to file their affidavit of evidence-in-chief irrespective of the release of the updated report. The parties will be afforded the opportunity to cross examine the Mr H and there is no impediment to them foreshadowing questions to him ahead of trial in the usual way.
Ms Franz relies upon a letter from a general practitioner in Suburb BB, New Zealand. In it the author opines that Ms Franz is “currently too unwell to attend trial.” She does not say why, although the implication seems to be that it is because of her mental health. Ms Franz appeared with her solicitor before me on the hearing of this application. She is plainly well enough to have travelled from New Zealand to Australia and to have given instructions on this application. The doctor does not opine as to the length of time Ms Franz will be unable to attend trial, although her solicitor suggested that a trial date next March was appropriate. The forensic basis for that suggestion was not apparent in the evidence. Moreover, that timeframe seemed to have more to do with securing evidence concerning the hacking more than anything else. I do not consider that I can attach any weight to this medical opinion and I do not do so.
Ms Franz submits that:
9. [Recent events]
(a) The Mother’s mental health is negatively impacted by [recent events], further exacerbated by the unprecedented levels of [discrimination] in […] Communities around the world as published in the media.
(b) Such examples in a local Sydney context, include [hate speech], physical threats and intimidation of […] people.
(c)[Ms W], Professor […], [CC University], and a well-respected member of the […] Community in Sydney writes:
According to [one organisation], there were [hundreds of] incidents reported in Australia [in just over a month]. This compares to a [slightly higher] total of […] incidents for the entire year from [late] 2021–22.
(d) Further, incidents of [discrimination] have increased markedly [recently].
Whilst I can take notice of the events (as they are described), there is no evidence to support the submissions made about this. There is no evidence that Ms Franz’s mental health has been affected negatively by these events, or that she is aware of any of the incidents that have been reported in Australia recently. There is no evidence upon which that submission can be advanced.
Ms Franz submits in her written submissions that what is needed here is that the Court’s resources and support services should be provided to each of the parties as well as to the matter generally and in particular, reference was made to the best practice principles relating to family violence and the Central Practice Direction. It was further submitted that the Court should consider transferring the matter to the “Evatt List” or listing the matter for a judicial settlement conference or even, perhaps, “the active case management approach by way of further listings before a Senior Judicial Registrar”. These submissions are all misguided and misconceived. These parties have the assistance of the court. As Judge Harman pointed out in Harricks & Harricks [2014] FCCA 2724, at [75], and as was referred to in written submissions on behalf of Ms Franz:
The primary role of the Court is to hear and determine controversy. In doing so the Court must receive probative evidence that allows determination of issues in dispute and identifying and allowing address of children’s best interests.
I would go far as to say that the only role of the Court is to hear and determine controversy. Unless there is a controversy before the Court, the Court cannot be seized of a matter. Its only authority under the Constitution is to quell controversy between parties in matters in respect of which it has jurisdiction. It has no brief beyond that.
Thus, these parties are at the “pointy end” of this litigation in that a trial date has been set for the case. There is little point in referring the matter back to a Senior Judicial Registrar for further case management where the case has been managed, has been assigned a trial date and has been in the court system for so long. What is needed is attention to the trial directions by Ms Franz. Her evidence does not suggest that she has been so distracted by her mental health issues or anything else that she could not turn her attention to those things. Moreover, she complains that Mr Kalinic has not complied with the orders presently in place for at least two of the children to spend time with her. How that informs the outcome of this application I am not sure. It was not explained. But to the extent that she complains that there has been non-compliance by Mr Kalinic with orders that are in place, then the answer is simple: bring a contravention application and those contraventions will be dealt with.
I am not satisfied that an adjournment is appropriate in this case. I am not satisfied that Ms Franz establishes it is appropriate to adjourn the case because she has been denied procedural fairness. In my view, she has been afforded procedural fairness as much as Mr Kalinic has been afforded procedural fairness. She has had the opportunity to prepare the matter for trial. She may still present evidence-in-chief. It will be a matter for the trial judge to determine whether she will have leave to rely on it at the trial and whether she is given leave to rely on it will depend on the alacrity with which it is produced and given to the other parties so that they have a reasonable time to consider it.
For those reasons, the application in a proceeding filed 17 November, 2023 is dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 30 November 2023
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