BEADLE & DANKS

[2019] FCCA 3895

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEADLE & DANKS [2019] FCCA 3895

Catchwords:
FAMILY LAW – Parenting – section 102NA mandatory protection for parties in certain cases – cross-examination – where there is an allegation of family violence.

Legislation:

Family Law Act 1975 (Cth), s.102NA

Applicant: MR BEADLE

Respondent: MS DANKS

File Number: ADC 2779 of 2011

Judgment of: Judge Young

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Adelaide

Delivered on: 10 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Reynolds

Counsel for the Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Smith

ORDERS

UPON NOTING

A.That the solicitor for the Independent Children’s Lawyer made an oral application that section 102NA of the Family Law Act 1975 apply.

B.That the court is satisfied that s 102NA(1)(c)(iii) applies and the father is not permitted to cross-examine the mother personally.

C.That the father was advised he would not be permitted to personally cross-examine the mother and he was directed to the Duty Lawyer for the Legal Service Commission of SA.

THE COURT ORDERS:

1. That leave is granted to the parties to inspect only and the parties’ legal representatives (and to include the Independent Children’s Lawyer (if appointed), any family consultant and family report writer) to inspect and copy the material produced by South Australia Police pursuant to the subpoena filed on 28 June 2017 (SAVE AND EXCEPT for those marked confidential). Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses NOTING leave is granted on the condition that all copies are destroyed at the conclusion of the matter and that the legal representatives keep the copies in their possession until that time.

2. That the trial dates on 10, 11 and 12 December 2019 be vacated and relisted on 27 and 28 May 2020 at 10.00am (allowing two days).

THE COURT NOTES THAT:

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Beadle & Danks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2779 of 2011

MR BEADLE

Applicant

And

MS DANKS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. A certificate of record from the Magistrates Court of South Australia at Suburb A records that in 2011 the applicant, Mr Beadle, was convicted of one count of aggravated assault (no weapon, against child or spouse) and he was placed on a good behaviour bond.  A police apprehension report refers to an offence in 2010 and to a suspected offence of aggravated assault against child or spouse.  The victim’s name was Ms Danks, the wife in these proceedings. 

3. I am satisfied that the applicant father intends to cross-examine the mother, that there is an allegation of family violence between the father and the mother and that the father was convicted of an offence involving violence to the mother in the circumstances I have mentioned, that is, at Suburb A Magistrates Court in 2011. That being the case, I am satisfied that the requirements of subsection (2) of section 102NA apply, that is, the examining party, the father, must not cross-examine the mother personally. I am going to make an order to that effect, that is, that the requirements of section 102NA, subsection (2), apply to the cross-examination.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 April 2020