BANKS & SMYTHE

[2019] FamCA 604

FAMILY COURT OF AUSTRALIA

BANKS & SMYTHE [2019] FamCA 604

FAMILY LAW – PRACTICE AND PROCEDURE – Section 102NA prohibition on cross-examination – where the father was charged with a domestic violence offence in 2016 – where findings were previously made in this Court that the father was the perpetrator of family violence towards the mother – where the father is self-represented – where no order has been made – where there is no disadvantage to either party in an order being made in the absence of the parties – ordered that the requirements of s 102NA(2) will apply.

Family Law Act 1975 (Cth)

APPLICANT: Mr Banks

RESPONDENT:	Ms Smythe
INDEPENDENT CHILDREN’S LAWYER:	Denise Clark Solicitor

FILE NUMBER: NCC 1359 of 2013

DATE DELIVERED: 28 August 2019

PLACE DELIVERED: Newcastle, in Chambers

PLACE HEARD: Newcastle, in Chambers

JUDGMENT OF: Cleary J

HEARING DATE: 28 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

Orders – made in chambers

UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to cross-examination in October 2019;

And further noting that the parties have each been advised by the court:

(a)that pursuant to those requirements, neither party may cross-examine the other party personally;

(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme (the scheme) and the means by which they may apply to the scheme for the provision of a lawyer; and

(d)that a copy of these orders will be provided by the court to Legal Aid New South Wales, which administers the scheme.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Smythe 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 NEWCASTLE

FILE NUMBER: NCC1359/2013

Mr Banks

Applicant

And

Ms Smythe

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 3 April 2019 parenting proceedings were set down for trial for two days commencing 14 October 2019.

2. On 14 May 2019 directions were made for preparation of the matter for trial.

3. The father represented himself at both Court events referred to in paragraphs 1 and 2 above.

4. On 14 May 2019 the father advised the Court that he was trying to obtain legal representation for the trial by a legal practitioner acting on a pro-bono basis.  The father was advised by the Court that he could not cross-examine the mother personally.

5. The Court was advised on 26 August 2019 by Legal Aid NSW that “Legal Aid NSW has received correspondence in the above matter that a s 102NA order has been made.”

6. No order of that type has in fact been made.

7. The Court can infer that the father approached Legal Aid for assistance with representation at trial.

Section 102NA of the Family Law Act 1975 (Cth)

1. Findings were made by this Court in Reasons for Judgment dated 8 November 2016 that the father was the perpetrator of family violence towards the mother.  The father concedes that he was charged with a domestic violence offence in 2016.  He received a s 10(1)(b) bond  (good behaviour bond) for 12 months with no conviction recorded.

2. In the circumstances outlined above, and where there is no disadvantage to either party in an order being made in the absence of the parties, an order pursuant to s 102NA is made.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 August 2019.

Associate: 

Date:  28 August 2019