TOKIC & ZIU - [2019] FamCA 547

FAMILY COURT OF AUSTRALIA

TOKIC & ZIU

[2019] FamCA 547

FAMILY LAW – ADJOURNMENT – Where husband seeks a nullity and the wife applies for parenting orders for the young child including sole parental responsibility - where the legal representatives for the applicant wife ceased to act as her solicitors on the day prior to the hearing – where the husband does not attend court; that his brother attends and said that the father’s mental health state precludes him from attending court
FAMILY LAW – PRACTICE AND PROCEDURE – criteria for a case guardian.

FAMILY LAW – PRACTICE AND PROCEDURE – function of a McKenzie friend.

FAMILY LAW – PRACTICE AND PROCEDURE – appointment of an independent children’s lawyer.

APPLICANT:

Mr Tokic

RESPONDENT:

Ms Ziu

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1668

2019

DATE DELIVERED:

13 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

The further hearing of the husband’s application for a nullity filed on 19 February 2019 and the mother’s response to the Initiating Application filed on 21 June 2019 be adjourned to the Judicial Duty List on 11 September 2019 at 10.00 am (“the adjourned date”).
The husband attend at court on the adjourned date.
In the event that the husband fails or neglects to attend court on the adjourned date the wife be and is hereby at liberty to seek that his application for a nullity be dismissed and the orders sought in her response to the initiating application proceed in the absence of the father and without any further input by him.
Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2019 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to:
a)ascertain from the father whether he will be seeking any parenting orders at all and inform him of the view of the Independent Children's Lawyer as to the long term effects of the child X not having a relationship with the father; and
b)to subpoena Victoria Police for the criminal records of each parent.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
By not later than 12 noon on Thursday 29 August 2019 the father file and serve any reply to the mother’s response to the Initiating Application setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TOKIC & ZIU

Details

AGLC: TOKIC & ZIU [2019] FamCA 547
Case: [2019] FamCA 547
Decision Date: 13 August 2019

CaseChat Overview and Summary

In proceedings before Bennett J, the husband sought a nullity of marriage, while the wife applied for parenting orders concerning their young child, including sole parental responsibility. The hearing was significantly impacted by the wife's legal representatives ceasing to act on her behalf the day prior to the scheduled court date. Furthermore, the husband did not attend court, with his brother attending to inform the court that the husband's mental health precluded his attendance.

The court was required to determine whether to grant an adjournment of the proceedings, considering the husband's absence and the wife's change of legal representation. Additionally, the court needed to address the best interests of the child, particularly in light of the husband's non-attendance and the wife's application for sole parental responsibility. The court also considered the procedural implications of these circumstances, including the potential appointment of an independent children's lawyer and the function of a case guardian or McKenzie friend, although these specific roles were not ultimately appointed in this instance.

Bennett J granted an adjournment of the further hearing to a specified date, ordering the husband to attend court on that date. The court stipulated that if the husband failed to attend, the wife would be at liberty to seek the dismissal of his nullity application and proceed with her parenting orders in his absence. Crucially, the court ordered the appointment of an independent children's lawyer pursuant to section 68L(2) of the *Family Law Act 1975* to represent the child's interests, requesting Victoria Legal Aid to arrange this representation promptly. The independent children's lawyer was directed to ascertain the father's intentions regarding parenting orders and to inform him of the potential long-term effects of the child not having a relationship with him, as well as to subpoena police criminal records for both parents. The court also set deadlines for the filing of further documents by the parents and for the transcription of the reasons for decision.

Orders

Orders of the court

IT IS ORDERED THAT

The further hearing of the husband’s application for a nullity filed on 19 February 2019 and the mother’s response to the Initiating Application filed on 21 June 2019 be adjourned to the Judicial Duty List on 11 September 2019 at 10.00 am (“the adjourned date”).

The husband attend at court on the adjourned date.

In the event that the husband fails or neglects to attend court on the adjourned date the wife be and is hereby at liberty to seek that his application for a nullity be dismissed and the orders sought in her response to the initiating application proceed in the absence of the father and without any further input by him.

Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2019 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to:

a) ascertain from the father whether he will be seeking any parenting orders at all and inform him of the view of the Independent Children's Lawyer as to the long term effects of the child X not having a relationship with the father; and

b) to subpoena Victoria Police for the criminal records of each parent.

Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

By not later than 12 noon on Thursday 29 August 2019 the father file and serve any reply to the mother’s response to the Initiating Application setting out with precision any parenting orders that he seeks be made in relation to X and any other orders he seeks in these proceedings.

By not later than 12 noon on Thursday 29 August 2019 each parent file and serve a Statement of Financial Circumstances.

My reasons for decision this day be transcribed and when transcribed, placed on the Court file and a copy provided to the parties.

10.

AND IT IS NOTED:

A. That the husband’s brother attended court and informed the Court that the husband was ill.

B. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.