Tatari & Tatari
[2023] FedCFamC1F 488
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tatari & Tatari [2023] FedCFamC1F 488
File number(s): MLC 12557 of 2021 Judgment of: BAUMANN J Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – PRACTICE AND PROCEDURE – Mother’s application to appear electronically at Interim Hearing granted Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 2 June 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Resolve Conflict Lawyers Solicitor for the Independent Children's Lawyer: Patford-Smith Legal Services ORDERS
MLC 12557 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TATARI
Applicant
AND: MR TATARI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
2 JUNE 2023
THE COURT ORDERS:
1.That in regard to the Interim Hearing before the Senior Judicial Registrar in these proceedings on 28 June 2023, the mother shall have permission and be entitled to appear electronically by Microsoft Teams.
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 the pseudonym Tatari & Tatari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral Reasons delivered)BAUMANN J:
The Application before me today is an application for review filed by an unrepresented mother on 15 May 2023 which seeks to review a decision said to be made by a Senior Judicial Registrar in the Melbourne Registry. That decision, as I understand from the correspondence (which is the only particulars of the order such as it is), initially permitted the mother to appear on the Interim Hearing set for 28 June 2023 by electronic means but then, through some process, the Senior Judicial Registrar came to the view that all parties should appear in person. Let me make it clear that traditionally, and for good reason, the appearance by parties personally before a judicial officer, be that a registrar or a judge, is, for many judicial officers and to facilitate the administration of justice, to be preferred.
To some degree, the Covid-19 restrictions that applied in many states, most notably in Victoria, caused the Court to adjust many of the ways in which they practiced and which they interacted with the community in ways which would not have ever been envisaged, even if technology was good enough for it 15 to 20 years ago.
The decision about appearances which I am being asked to make, is a hearing de novo.
One issue is whether the forensic nature of the dispute that has to be determined would be compromised in some way if the parties do not appear personally and/or in that context whether the position that the mother advances – I admit without significant evidence before me at the moment – that she fears to be in the same building or presence of the father, is sufficient to permit her to represent herself as she is at an Interim Hearing on 28 June 2023 by electronic means.
In my view, I take into consideration the mother’s concerns. I give proper weight to the position that the solicitor for the father articulates, namely that it would be better for the mother to be present. When he says that, I can only infer it would be better for the Court if the mother would be present because her presence is not a matter that should concern, per se, the father. I am concerned that the actual nature of what is to be dealt with on 28 June 2023 appears to me to be a bit vague because there is no current recent Application in a Proceeding that seems to articulate the order that the father is now seeking. That is important in circumstances where it appears earlier Orders made by consent by Judicial Registrars on 20 December 2021 and further on 20 June 2022 for the three children currently aged 8, 6 and 2 to spend time with the father including holidays, have not been complied with by the mother.
When I enquired about why that is the case, two things emerged. One, in mid-2022, the mother obtained an Intervention Order under Victoria State legislation in a local Magistrates Court in Melbourne. I do not have that Intervention Order before me. I have not had a chance to look at its terms but I am told by the mother that, soon, the hearing of that application in the Magistrates Court of Melbourne will take place. The second factor, and one which is, I think, relevant, is that the mother’s concerns about the father may be supported in part by the more recent report of Dr B filed 25 May 2023, which is after the Senior Judicial Registrar made her decision.
In particular, I refer to paragraphs 112, 113 and 114 of Dr B’s report. To the extent that there have been allegations of sexual abuse which the solicitor for the father says have now been dealt with in that the father was charged but that the police have decided, as is their entitlement, not to press those charges, that is also further context for why the mother seeks that she not come to Court and face the risk of seeing the father in Court.
I also note that there appears to have been a notation to an Order made 9 September 2022 where it provides that the father would not press to spend time with the children until the sexual abuse allegations have been dealt with in some way. The father, I understand, will at the Interim Hearing, be seeking an order for supervised time with the children to recommence – which the mother opposes.
I can well understand until this matter comes to trial, the father is anxious to spend time with his children. If he has bought, as it seems the Senior Judicial Registrar is satisfied is the case, a proper application to seek an order for supervised time, then it will be dealt with on 28 June 2023.
I do not see any difficulties at all, in my view, in the circumstances of this case with this very difficult history, for the unrepresented mother to appear by electronic means as she has previously. I will order that for the Interim Hearing on 28 June 2023, the mother shall have permission and be entitled to appear by Microsoft Teams.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 June 2023
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