Agombar & Ermans

[2021] FCCA 1842

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agombar & Ermans [2021] FCCA 1842

File number:

MLC 2591 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

11 August 2021

Catchwords:

FAMILY LAW – section 102NA – cross-examination of parties scheme – where father seeks representation under section 102NA – where mandatory provisions do not apply – courts discretion – orders made

Legislation:

Family Law Act 1975 (Cth), ss 102NA, 102NB

Cases cited:

Middleton & Redmond [2021] FCCA 316

Owen & Owen [2020] FamCA 90

Number of paragraphs:

19

Date of hearing:

18 November 2020

Place:

Melbourne

The Applicant:

Appeared In Person

Counsel for the Respondent:

Mr D Carne

Solicitor for the Respondent:

Ryan Carlisle Thomas

ORDERS

MLC 2591 of 2020

BETWEEN:

MR AGOMBAR

Applicant

AND:

MS ERMANS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	18 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The final hearing listed to commence on 30 November 2020 be vacated.

2.Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) ("the Act"), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.

3.The proceedings be adjourned to 2 June 2021 at 10.00am for Final Hearing before Judge McGuire (with an estimated hearing time of two days) at the Federal Circuit Court of Australia at Melbourne.

4.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

AND THE COURT NOTES THAT:

A.Pursuant to order 2 hereof, the Applicant do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his legal representation at Final Hearing.

B.The relevant application referred to in Notation A hereof is available to the parties at 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 under the pseudonym Agombar & Ermans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. On 18 November 2021 I made an order pursuant to section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) and reserved my reasons.  These are those reasons.  These proceedings concern the child X who is now aged 8.  The Applicant Father is Mr Agombar (‘the Father’) and the Respondent Mother is Ms Ermans (‘the Mother’). 

2. The issue that came before me on 18 November 2020 was solely whether a section 102NA of the Act order should be made preventing the Father from cross-examination pursuant to the scheme of that section.  The matter was…