Kristoffersen & Sticamas [2025] FedCFamC1F 168 (14 March 2025)

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This judgment concerns an application by the mother to adjourn the interim proceedings that are dealing with the question of whether the parties' child, X, should spend supervised time with the father in Australia pending the further determination of the case. The proceedings, or rather the hearing, commenced on Wednesday two days ago. These interim proceedings involve an application by the father for supervised time with X. That application occurs in the context of final parenting orders having been made by a court in City B and Hague Convention proceedings taking place in Country C following the father's retention of X in Country C, a retention that he accepts before this court was not justified. The proceedings also take place in circumstances where the mother contends that the father presents as an unacceptable risk to X, in particular such risk suggested by allegations of sexual abuse and allegations in relation to a death threat said to have been made against those who have the care of X by the father.
2. On Wednesday the proceedings progressed so far as to have received the evidence from the father and mother and their final submissions. Following the completion of final submissions for the mother and the commencement of final submissions by the Independent Children's Lawyer ("the ICL") an application was made without notice and without explanation by the counsel and solicitor for the mother for leave to withdraw. In the circumstance of the making of that application that leave was granted. Over opposition the proceedings were then adjourned to this morning, being Friday, to allow the mother some opportunity to engage with lawyers. The mother has described to the court that she has taken appropriate steps to seek to engage further lawyers but without success.
3. It is in that context that the mother now presses for a further adjournment of the proceedings for 28 days in order to enable her to obtain further legal representation, or in the alternative an adjournment of the proceedings for psychological assessment of X. That psychological assessment is pressed upon the court on the basis that X was subject to trauma as part of the retention by the father. The particular grounds or primary grounds for the adjournment are that the mother now has no lawyer but also that there is no interpreter in the proceedings, English not being her native language but rather Country C language. In making the application for adjournment the mother has also addressed further disputed factual matters and been permitted to tender a further document. The issue of psychological assessment of X should be subsumed within the substantive consideration of the interim application. The key basis for today's application rests in whether or not the proceedings will accord the mother sufficient procedural fairness to continue now.
4. In determining whether or not the proceedings can continue in a fair manner it is material to note that the mother's case was complete prior to the loss of her lawyers, although she has now been permitted to supplement that case somewhat. It is also material to note that no explanation has been proffered as to why the mother has lost her previous legal representation although the mother has explained taking steps to acquire further legal representation.
5. For the sudden loss of that legal representation to have cogency in determining the issue of procedural fairness some explanation is necessary. Given the stage of the proceedings and given that there is no explanation to suggest that the lack of legal representation is outside the hands of the mother means that the current lack of legal representation does not present a cogent reason to adjourn the proceedings.
6. The mother has identified that she sought that her legal representatives obtain an interpreter for the proceedings on 16 February 2025 being the day prior to the swearing or affirming of her affidavit. The mother says that she has difficulty in understanding and has in fact failed to understand some aspects of the proceedings that took place on Wednesday. It may be accepted that English is not the mother's primary language. It may also be readily accepted that although the mother presents as proficient in English that the court proceedings can still be difficult matters to understand. At times they are difficult for native English speakers to understand and those difficulties are amplified when the English language is not one's primary language.
7. I would note however, that the mother has in her engagement with the court today demonstrated significant proficiency in her use of the English language. All documents, at least those evidential documents that have been sworn or affirmed are in the English language with nil indication of translation being necessary, and it may also be noted that the proceedings were conducted without an application for an interpreter whilst the mother was legally represented, and to that extent the mother is somewhat bound by the conduct of her lawyers in the proceedings. The application now comes in circumstances where at least in terms of interactions this morning the mother has been demonstrated as able to engage adequately in the English language. I accept that the circumstances of the proceedings being in the English language present difficulty to the mother, however I further am satisfied that the mother's grasp of the English language is sufficient to enable both an adequate understanding of the mother and for the mother to adequately understand the proceedings. That is especially so given the limited remaining aspects of the case.
8. The adjournment at this point in the proceedings is not justified and the application is refused.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill.