TOKIC & ZIU
[2019] FamCA 547
•13 August 2019
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 – 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 | of | 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 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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tokic & Ziu 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 MELBOURNE |
FILE NUMBER: MLC 1668 of 2019
| Mr Tokic |
Applicant
And
| Ms Ziu |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before me in the duty list. It is the return date of the husband’s application for a nullity. The wife seeks that the nullity application be dismissed and parenting orders concerning the parties’ child, X born in 2019. In particular, that she have sole parental responsibility and that X reside with her. The wife is not specific about what time the child can spend with the father.
Ms Ziu, the wife, appears in person with the assistance of an interpreter. She was previously represented by solicitors but they withdrew as her practitioners yesterday. Today the wife completed a notice of address for service nominating C Street, Suburb D in Victoria as her address for service. There is also an email address and a mobile telephone number.
The husband does not attend court today. His brother Mr B Tokic attends and says that the husband is upset and not in an appropriate state of mental health to be able to appear today. He seeks that the matter be adjourned. He sought by email that the matter be adjourned yesterday and the adjournment was refused by the mother. Mr B Tokic’s email was addressed to the case coordinator and read:
Dear [Ms E],
PLEASE PLACE THIS CORRESPONDENCE ON THE COURT FILE.
I [Mr B Tokic] am sending this email on behalf of Mr Tokic. His matter is listed for Tuesday 13/08/2019 file no. MLC1668/2019.
We respectfully request an adjournment to Tuesday 24/09/2019.
We require this extra time due to Mr Tokic’s mental health state at the moment.
Please confirm receipt of this correspondence.
Kind regards
Mr B Tokic
Mobile – …
My impression is that Mr B Tokic has some experience in managing the father’s various court proceedings. Mr B Tokic informed the court that on 23 August 2019 the husband is required to appear before the Magistrates Court at Heidelberg for some criminal charges. In particular, verbal abuse.
The basis of the husband’s nullity application, as best I can understand it, is that at the time of the marriage he was suffering from a psychiatric illness and/or from the effects of medication so that he could not understand the ceremony. I mention this because, the husband’s mental state has been of ongoing and constant significance. The husband’s alleged incapacity to appear in court is not wholly unanticipated.
The husband’s brother says that the husband may be legally represented on the adjourned date. Clearly, it is not compulsory to have legal representation but self-represented litigants must be prepared to run their case without a lawyer.
I have explained to the husband’s brother that there is a procedure whereby a case guardian can be appointed to run the proceedings on behalf of the husband. The procedure is governed by Chapter 6, Part 6.3 of the Family Law Rules 2004 which, inter alia, provide:
·a person under a disability they start, continue, respond to, or seek to intervene in the case only by case guardian (see r.6.08(1));
·a person may be a case guardian of the person as an adult, has no interest in the case that is adverse to the interests of the person needing the case guardian, can fairly and competently can conduct the case of the person needing the case guardian; and has consented to act as the case guardian (see r.6.09);
·a person appointed as a case guardian of the party:
i)is bound by the Rules;
ii)must do anything required by the Rules to be done by the party;
iii)may, for the benefit of the party, do anything permitted by the Rules to be done by the party; and
iv)if seeking a consent order bracket other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court order is the parties best interests (see r.6.13(1));
·The duty of disclosure applies to a case guardian for a person with a disability. (see r.6.13(2)).
That is not an application which will be automatically granted and it is not an application with which the husband or his family should delay.
Today the mother wants to see the duty lawyer.
I have decided to adjourn the matter to the next available duty list. On that day, the father is required to attend court and, if he does not, the wife is at liberty to seek that the husband’s application for nullity be dismissed and to proceed on an unopposed basis for the orders she seeks.
I have appointed an independent children’s lawyer for X. He is only three months old. At the moment there is no application by the father for parenting orders concerning X. The mother informs the court that the father has not seen X and does not express any interest in X. It may be that orders are made in the terms of the mother’s application eventually. However, it is appropriate that the child’s interests be represented where there is potential for the child to not have a meaningful relationship with one of his parents. There should be some explanation to the father of the long-term impact of X not having any relationship with him. I will direct the independent children’s lawyer to require production of each parent’s criminal records (if any) by subpoena returnable on or before the adjourned date.
The father’s brother has indicated that the husband will at least be seeking paternity testing to establish that he is the biological father of the child. I do not take that into any formal position on behalf of the husband because his brother is not authorised to represent him, nor competent to do so before this court.
If the independent children’s lawyer is told that the parents and child will undergo paternity testing, the independent children’s lawyer should consider whether an administrative adjournment of the next date should be sought so the matter returns to court after paternity is ascertained.
I will require the parties to file financial statements as the mother has a financial application before the court in relation to child-bearing expenses.
I will extend the time in which the father can file his response to the mother’s application initiating proceedings to 29 August 2019.
At the conclusion of the proceedings the mother asked if she could be represented by a member of her family in a manner similar to what she perceives is happening for the husband. She stated that, at the last occasion the matter was before the court on 5 April 2019, Mr B Tokic ‘appeared’ with the husband and sat next to him at the bar table. I expect that Mr B Tokic was permitted to sit with the husband in the capacity of a McKenzie friend and not as a representative. Indeed, Mr B Tokic is not a solicitor so he is not qualified to appear. The mother was disconcerted that she is not going being able to be represented by a (not legally trained) member of her family. She referred to that being “unfair” when compared to the husband whose brother attends court today.
The wife might look to have a member of her family assist her as a McKenzie friend but both she and the husband should know what functions can be undertaken by a McKenzie friend. The term ‘McKenzie friend’ comes from a case of that name[1] referred to in R v Bow County Court; Ex Parte Pelling [1999] 4 ALL ER 751. A McKenzie friend is not legally qualified. They may, with the express permission of the Court, support and assist a litigant in Court. A McKenzie friend can sit next to the party they are assisting, quietly, so as to be available to do such things as pass documents to the assisted person when needed. A McKenzie friend may assist by taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally be of assistance to the litigant in presenting his or her case to the court, provided the person does not disrupt the proper conduct of the proceedings. A McKenzie friend is usually not permitted to be an advocate or to cross‑examine any witness on behalf of the person they are assisting nor make submissions to the Court.
[1]McKenzie v McKenzie (1970) 3 W.L.R. 472
There is a fundamental distinction between allowing a party to be assisted by a McKenzie friend on the one hand and the appointment of a case guardian as discussed earlier in these reasons. This distinction is discussed in Watson and Watson [2001] FamCA 1470. In that case, Lindemayer J traversed in detail the fairly onerous obligations and responsibilities of a next friend which is analogous to a case guardian. For instance, a next friend appointed to represent a litigant under a disability is personally responsible to the other parties to litigation for their costs in the event that an order for costs is made in their favour. However if the next friend has acted reasonably, the next friend is entitled to be indemnified against the liability by the litigant that he or she represents, or out of the litigant’s estate (at 88,836).
The matter is adjourned to the Judicial Duty List on 11 September 2019 at 10:00 a.m. The starting time for court means that the parties, and anyone accompanying them, must have made their way through security screening and be in the building by not later than 9:45 a.m. on the adjourned date. Each party should be ready to proceed and to represent themselves if needs be. The wife will see the Duty Lawyer today.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 August 2019.
Associate:
Date: 15 August 2019
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