Kavran & Vinko (No 3)
[2023] FedCFamC2F 1513
•4 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kavran & Vinko (No 3) [2023] FedCFamC2F 1513
File number(s): PAC 616 of 2022 Judgment of: JUDGE STREET Date of judgment: 4 October 2023 Catchwords: FAMILY LAW – PARENTING - adjournment Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases Cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 3 Date of hearing: 4 October 2023 Place: Sydney Counsel for the Applicant Mr L Teoh Solicitor for the Applicant G & S Law Group Counsel for the Respondent Mr D Blackah Solicitor for the Respondent Marsdens Law Group Counsel for the Independent Children’s Lawyer Mr K Francis Independent Children’s Lawyer Laura K Law ORDERS
PAC 616 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAVRAN
Applicant
AND: MR VINKO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 OCTOBER 2023
THE COURT ORDERS THAT:
1.The current part heard hearing dates are vacated.
2.The matter is fixed for a continuation of the part heard hearing commencing at 10:00AM on 5, 6 & 7 February 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.Leave is granted to the parties, if they wish, to file and serve an updating affidavit together, if they wish, with a short supplementary case outline on or before 25 January 2024.
4.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers if appropriate.
5.Liberty is granted to apply on three (3) days notice
6.Costs are reserves occasioned by reason of the adjournment.
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
JUDGE STREET
These proceedings were fixed for a continuation of the final parenting hearing. In circumstances where the court made interim orders on 2 August 2023 and delivered a short interim judgment concerning the reasons why the Court was, at that stage, in the part-heard hearing, making interim orders. The respondent filed an application seeking an adjournment and provided an affidavit in support, relating, in part, to recent health and events concerning his mother, with whom he lives. The application was filed on 26 September 2023, and the affidavit made assertions as to the respondent being required to care for his mother, being incapacitated, and that he could not leave the home and she could not be left alone. The respondent identified that his father was unable to provide the relevant care and that his brother was unable to provide that care as well.
Mr Blackah of counsel informed the Court that he was of the view that it would be procedurally unfair to require the hearing to continue in the circumstances before the respondent. Mr Teoh of counsel opposed the adjournment and submitted that the evidence in relation to the medical condition of the mother was limited to the mother’s evidence, which was not of a material kind, and that the hearing might be capable of proceeding. The Court has an overarching duty to ensure procedural fairness in relation to the conduct of its hearings. Whilst it may be that a more resilient person might be capable of participating in the current part-heard hearing, and as it may be that there is considerable force in Mr Teoh’s submission as to the very limited nature of the materiality of the mother’s evidence, the Court accepts the submissions of Mr Blackah. However, it would be unfair to require the respondent to participate in the hearing in the circumstances that he has identified in his affidavit.
The Court notes that the ICL took a position of not supporting an adjournment but, for the reasons the Court has identified, the Court is satisfied that an adjournment is warranted in use of the administration of justice. So far as relevant, the Court has taken into account the principles in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87] as well as s43, s60B, s69ZN, the power of short form reasons in s69ZL of the Family Law Act 1975 (Cth) and the overarching purpose in s190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court reserves the costs occasioned by reason of the adjournment on the application of the applicant.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 29 November 2023
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