Muratov and Muratov

[2019] FamCA 1014

FAMILY COURT OF AUSTRALIA

MURATOV & MURATOV [2019] FamCA 1014

FAMILY LAW – PRACTICE AND PROCEDURE – matter listed for three day trial – where the father has recently become self-represented – where discretion under s 102NA of the Family Law Act 1975 is applied – where the use of a telephone interpreter for trial is not proper – where procedural fairness demands trial to be adjourned

Family Law Act 1975 (Cth) s 102NA

APPLICANT: Mr Muratov

RESPONDENT: Ms Muratov

FILE NUMBER: BRC 6640 of 2017

DATE DELIVERED: 18 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 18 November 2019

REPRESENTATION

THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr C Bolovan

SOLICITOR FOR THE RESPONDENT: Genuine Legal WA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D Carlton

INDEPENDENT CHILDREN’S LAWYER: Ms C Burchill
Burchill & Horsey Lawyers

Orders

UPON NOTING that the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them and further noting that the parties have each been advised by the Court:

A.that pursuant to these Orders, neither party may cross-examine the other party personally;

B.that pursuant to these Orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

C.as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

D.that a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

2. That the Final Hearing of these proceedings listed 18, 19 and 20 November 2019 be adjourned to 10.00am on 9, 10 and 11 March 2020 in the Family Court of Australia at Brisbane.

3. That the parties have leave to file one (1) Affidavit of any updating evidence in chief by 4.00pm on 24 February 2020.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1. That the child, X born in 2006 (“the child”) live with the mother in Australia.

2. That the child shall spend time with the father as agreed between the parents in writing, but failing agreement:

   (a)during school holiday periods as agreed but failing agreement for the first half of the Queensland gazetted school holiday period in even numbered years and the second half in odd numbered years;

   (b)from after school Friday until 5.00pm Sunday each alternate weekend; and

   (c)from 12.00pm Christmas Day until 12.00pm Boxing Day.

3. That changeover is to occur at the child’s school on school days and at McDonald’s Suburb B on non-school days unless otherwise agreed.

4. That the child be at liberty to communicate with the father at any reasonable time and with the mother when not living with her and in relation to such communication:

   (a)when the child is communicating with the other parent each parent shall:

   (i)ensure that the child is available to receive the telephone call;

   (ii)arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and

   (iii)ensure that the child has privacy during his communication with the other parent.

   (b)the child is at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the child to make any calls they request.

5. That the parents shall communicate about the child’s care, welfare and development by email or text message except in emergent circumstances.  Particularly if the child becomes ill in the care of the father he shall notify the mother forthwith.

6. That neither parent shall discuss these proceedings with the child.

7. That neither parent will denigrate the other or their family to, or in front of, or within the hearing of the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and failing their compliance with such a direction shall remove the child from that environment immediately.

8. That all orders made by this Honourable Court on 18 July 2018 remain in force.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Muratov & Muratov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6640 of 2017

Mr Muratov

Applicant

And

Ms Muratov

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. An Application before me relating to a child, X, born in 2006, being permitted to relocation to Country C, the native country of his parents, has been awaiting trial in the Brisbane trial pool.  In June 2019, through the course of a call over, the matter was listed today for hearing for three days.  At the time the matter was listed for hearing and trial directions made on 27 June 2019, the Applicant father, who opposes the child relocating, was represented by Legal Aid Queensland.  The Respondent mother, who seeks relocation, is privately funding her representation.

2. An Independent Children’s Lawyer (“ICL) was appointed and is, of course, funded by Legal Aid Queensland. Standard trial directions were made on 27 June 2019. At the time of the setting down of the matter, an issue about the father requiring an interpreter was not an issue as he had representation. On the basis that he had representation and in circumstances where the Court was alert to the requirements of Section 102NA of the Family Law Act 1975, operating from 11 September 2019, and restricting cross-examination occurring of the mother by the father, if he was unrepresented, that issue did not arise either.

3. For context, the Court has been informed by Legal Aid Queensland that they require not less than 12 weeks once the Court identifies a matter under s 102NA to arrange for representation under the new Commonwealth funding scheme. Unbeknownst to me, on 23 September 2019, the solicitors on the record for the father filed a Notice of Ceasing to Act. The difficulties with the father being unrepresented and the catalyst of those difficulties relating to a fair trial and s 102NA only really came to the attention of my chambers when my Associate last week was conducting the usual trial compliance.

4. The father had not complied with the trial directions to file material but subsequently did so.  His material include a statement by his partner, although it ought to have been in affidavit form.  The father and his partner, since the matter were listed for trial, seem to now be aware of a pending birth of their son in early 2020.  I heard submissions from Mr Carlton of Counsel for the ICL and Mr Bolovan of Counsel for the mother as to whether it is possible for a trial to proceed today with the father representing himself and where, because of the late notice of an interpreter being required and despite the best efforts of a very competent interpreter appearing by telephone from Sydney, the best the Court can offer the father is interpreting service by telephone.

5. The nature of that service is that the discussions between the father and the interpreter occur in open Court through the Court’s telephone system.  The mother who speaks, of course, Country C language but is also much more fluent in English than is the father would have the forensic advantage of hearing the discussion before the questions came.  The father would have little opportunity for reflection on the question.  I agree with Mr Carlton that the need for a trial on such a serious issue to be conducted fairly requires the trial to be adjourned.

6. Mr Bolovan, alert to his client’s no doubt distress about a delay in the case being heard until March next year and the effect on her desire to move on with her life and what she sees as the best interests of their parties’ son, X, whilst not necessarily opposing the application for adjournment, fairly, I think, conceded the difficulties were probably insurmountable. The father, as an unrepresented litigant and by the operation of s 102NA, would, with an exercise of discretion by this Court, be entitled to make application for the appointment of a lawyer. It will require the exercise of a discretion because, although there was a family violence order made initially on or about 25 January 2016, that order has since expired.

7. There are no other personal protection orders as far as the Court is aware.  Mr Carlton, on behalf of the ICL, I think, fairly, acknowledges that it would be his word “incredulous” if a person representing the father or the father was not seeking to cross-examine the mother about the events of at least January 2016.  He points to the fact that the mother relies upon such evidence in her Affidavit and, even though some aspects of the events appear to have been conceded by the father, in the interviews with the report writer, Mr D, there are no doubt nuances to the event which need to be explored.

8. This is because the events at separation have had possibly an effect on the relationship the father had with Ms F, the oldest child, who is now 19, and possibly the youngest boy, X, who it is alleged was at least present for some or all of these events. Accordingly, even though the failure of the father to have representation would be a predicament for the Court through the lack of an available interpreter, that is not the trigger for s 102NA. The trigger is in terms of the legislation. Accordingly, I make the usual orders in respect of the triggering of s 102NA and my exercise of discretion.

9. As I understand, the practice that will be required will be that notice of this order will be given to Legal Aid Queensland and they will contact the father with a view to him making application under the scheme. In circumstances where they were until recently on the record for him, they know where he lives. I merely make the observation that, if the father had representation today, either because Legal Aid Queensland anticipated the triggering of s 102NA, even if there was no order, then, we may have been able to overcome the difficulty of having an interpreter present in Court at this stage.

10. Further, costs to the parties and the stress to the parties and to the child have been caused.  It seems unusual to me that less than three months ago Legal Aid would withdraw aid for the father only now to be required, perhaps, through a different pocket of money, to represent him again.  Nonetheless, that is, in my view, what is required of me applying the law at this stage.  I am going to stand the matter down so the parties can have a brief discussion as to whether orders that have previously made and are in effect adequately meet the needs of the child in relation to the forthcoming holiday period in Queensland.  I do intend to list this matter for trial for no longer than three days commencing 9 March 2020; my hope is that that will be suitable to the Counsel already retained but there is little flexibility I have with that date.

11. I will list the matter for trial for three days commencing 9 March 2020.

12. I am not inviting more material but I will direct that the parties have leave to file one affidavit of any updating evidence in chief – just evidence in chief – by 24 February 2020.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 November 2019.

Associate:

Date:  8 January 2020