Bellanger & Wemble (No 4)

Case [2024] FedCFamC2F 1606


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606 

File number(s): MLC 5456 of 2023
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 7 November 2024
Catchwords: FAMILY LAW – Parenting – trial vacated – parties unrepresented – whether section 102NA(2) order should be made – section 102NA(c)(iv) invoked – section 102NA(2) orders made – related parties restrained from personally cross examining each other – further trial directions made – airport watchlist order remain in place.
Legislation: Family Law Act 1975 (Cth) ss 102NA(1)(a)(b)(c), ss 102NA(2)
Cases cited:

Bellanger & Wemble [2023] FedCFamC2F 1246

Middleton & Redmond [2021] FCCA 316

Division: Division 2 Family Law
Number of paragraphs: 30
Date of hearing: 7 November 2024
Place: Melbourne
Solicitor for the Applicant: Mr Monoah of Sunshine Lawyers
The First Respondent: No appearance
Solicitor for the Second Respondent: Mr Ajak of Ajak & Associates
Counsel for the Independent Children's Lawyer: Mr Combes
Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers

ORDERS

MLC 5456 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BELLANGER

Applicant

AND:

MR WEMBLE

First Respondent

MS PAIGE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The final hearing listed for 11 November 2024 be and is hereby adjourned to Monday 5 May 2025 at 10.00 am (for an estimated 4 days) in the Melbourne Registry at 305 William Street, Melbourne.

2.Orders 1 & 2 (restraining the second respondent paternal grandmother, MS PAIGE (‘the Paternal Grandmother’) from leaving or departing the Commonwealth of Australia) and orders 3 & 4 (the watchlist orders) of the orders of 20 August 2024 remain in place until further order.

Section 102NA orders

3.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the first respondent father, MR WEMBLE (‘the Father’) and the applicant mother, MS BELLANGER (‘the Mother’), are prohibited from personally cross-examining one another in these proceedings.

4.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Father 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.

5.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Paternal Grandmother and the Mother are prohibited from personally cross-examining one another in these proceedings.

6.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Paternal Grandmother under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Paternal Grandmother…

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AGLC
Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606
Case
[2024] FedCFamC2F 1606
Decision Date

CaseChat Overview and Summary

In the case of Bellanger & Wemble, the Federal Circuit and Family Court of Australia presided over a contentious parenting dispute between Ms Bellanger, the applicant, and Mr Wemble, the first respondent. The second respondent, Ms Paige, the paternal grandmother, was also involved in the proceedings. The case centred around the welfare and custody of the children, with allegations of family violence playing a significant role in the proceedings. The court was required to make several critical decisions, including whether to vacate the trial, whether to make orders under section 102NA of the Family Law Act 1975 (Cth), and how to manage the cross-examination of parties in light of the allegations of family violence.

The court considered whether to vacate the trial due to the parties being unrepresented. Given the complexity of the case and the serious allegations of family violence, the court determined that vacating the trial was necessary to ensure proper representation and to protect the interests of all parties, especially the children. Furthermore, the court examined whether to make orders under section 102NA of the Family Law Act, which prohibits parties from personally cross-examining each other in cases involving family violence. The court invoked section 102NA(c)(iv) due to the significant allegations of family violence, the risks to the children, and the potential impact on the parties involved. Consequently, the court made orders prohibiting the father, the paternal grandmother, and the mother from personally cross-examining each other.

The court also made orders to assist the father and the paternal grandmother in obtaining legal representation. It requested Victoria Legal Aid to provide assistance under the Commonwealth Family Violence and Cross Examination of Parties Scheme, requiring the father and the paternal grandmother to apply for funding. Additionally, the court issued trial directions to streamline the proceedings, including deadlines for filing affidavits and outlines of cases. The court emphasised that these directions did not affect any rights regarding the privilege against self-incrimination. Finally, the court noted that the form of the order was subject to entry in the Court’s records and could be subject to review or variation.

Orders

Orders of the court

MLC 5456 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BELLANGER

Applicant

AND:

MR WEMBLE

First Respondent

MS PAIGE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The final hearing listed for 11 November 2024 be and is hereby adjourned to Monday 5 May 2025 at 10.00 am (for an estimated 4 days) in the Melbourne Registry at 305 William Street, Melbourne.

2. Orders 1 & 2 (restraining the second respondent paternal grandmother, MS PAIGE (‘the Paternal Grandmother’) from leaving or departing the Commonwealth of Australia) and orders 3 & 4 (the watchlist orders) of the orders of 20 August 2024 remain in place until further order.

Section 102NA orders

3. It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the first respondent father, MR WEMBLE (‘the Father’) and the applicant mother, MS BELLANGER (‘the Mother’), are prohibited from personally cross-examining one another in these proceedings.

4. IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Father 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.

5. It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Paternal Grandmother and the Mother are prohibited from personally cross-examining one another in these proceedings.

6. IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Paternal Grandmother under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Paternal Grandmother 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 her legal representation at final hearing.

Trial directions

7. The Mother be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other parties of that reliance no less than 56 days prior to the final hearing, and in the event the Mother chooses to rely upon a consolidated affidavit of evidence in chief, that affidavit be filed no less than 56 days prior to the final hearing.

8. The Father and the Paternal Grandmother be at liberty to rely upon any affidavit material previously filed in these proceedings.

9. The Independent Children's Lawyer file and serve any material on which he seeks to rely by no later than 28 days prior to the Final Hearing.

10. Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

11. The Mother and the Independent Children’s Lawyer file and serve an outline of case no later than 7 days prior to the trial date which includes:

(a) A list of the application/response and all affidavits to be relied upon including the dates of filing;

(b) A brief chronology of relevant events;

(c) A precise minute of the orders the party is seeking; and

(d) A list of authorities to be relied upon, if any.

12. Subject to order 13 herein, the Father and the Paternal Grandmother be at liberty to file and serve an outline of case no later than 7 days prior to the trial date which includes:

(a) A list of the application/response and all affidavits to be relied upon including the dates of filing;

(b) A brief chronology of relevant events;

(c) A precise minute of the orders the party is seeking; and

(d) A list of authorities to be relied upon, if any.

13. These trial directions do not limit or otherwise affect any right of the Father or the Paternal Grandmother regarding the privilege against self-incrimination at common law or pursuant to the Evidence Act 1995 (Cth).

AND THE COURT NOTES THAT:

A. The Court has exercised its discretion under section 102NA(1)(c)(iv) to prohibit cross-examination in this matter due to the significant allegations of family violence between the parties, the significant risks it is alleged the children face, and the very grave consequences alive in these proceedings for the Paternal Grandmother as well as for the Mother, the Father and the children, which would likely impact upon a victim of alleged family violence giving evidence and/or being cross examined.

B. The relevant application referred to in orders 4 and 6 herein is available to the parties at https://www.legalaid.vic.gov.au/find-legal-answers/commonwealth-family-violence-and-cross-examination-of-parties-scheme.

Note: The form of the order is subject to the entry in the Court’s records.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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