Bellerby & Stein
[2025] FedCFamC1F 81
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bellerby & Stein [2025] FedCFamC1F 81
File number(s): NCC 1544 of 2022
NCC 1521 of 2022Judgment of: SMITH J Date of judgment: 29 January 2025 Catchwords: FAMILY LAW - PARENTING – Practice and procedure – applications made for two parties to attend the hearing via electronic means – adequate arrangements made – applications allowed Legislation: Family Law Act 1975 (Cth), Pt XI, s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 15.16.
Number of paragraphs: 15 Date of Hearing: 29 January 2025 Place: Newcastle In NCC 1544 of 2022 For the Applicant: The Applicant did not appear Solicitor Advocate for the Respondent: Ms Naumovska Solicitor for the Respondent: Ann Legal For the Independent Children's Lawyer: The Independent Children’s Lawyer did not appear In NCC 1521 of 2022 Solicitor Advocate for the Applicant: Mr McNeill Solicitor for the Applicant: Alan McNeill Solicitors Solicitor Advocate for the Respondent: Mr Jensen Solicitor for the Respondent: Lindeman Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms Hannaway Solicitor for the Independent Children's Lawyer: Hannaway Lawyers ORDERS
NCC 1544 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BELLERBY
Applicant
AND: MS STEIN
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The Final Defended Hearing commencing Monday, 3 February 2025 is confirmed.
2.Leave is granted to the Respondent mother to give her evidence, and attend the Final Hearing, by electronic means from a separate room within the court building.
3.The mother’s legal representative is to be present at the location the mother is giving her evidence from, and to have access to Court Books, and to assist in the showing of any sensitive material to the mother, and to ensure that she does not have unrestricted access to material she is not otherwise entitled to access.
THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bellerby & Stein has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORDERS
NCC 1521 of 2022 BETWEEN: MR DURAN
Applicant
AND: MS DURAN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The Final Defended Hearing commencing Monday, 3 February 2025 is confirmed.
2.Leave is granted to the Respondent mother to give her evidence, and attend the Final Hearing, by electronic means.
3.The mother’s legal representative is to be present at the location the mother is giving her evidence from, and to have access to Court Books, and to assist in the showing of any sensitive material to the mother, and to ensure that she does not have unrestricted access to material she is not otherwise entitled to access.
THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bellerby & Stein has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
In the Duran matter, there is an application for the mother to appear by an audio-visual link. The mother lives some distance away. I have documentary evidence from B Hospital that in mid-2024 she attended and gave a history as recorded in the clinical summary of:
…fall […]. Has altered sensation in legs, able to mobilise into department. Numbness in both arms. Indicates pain is around sacrum. Thinks fell approx 1430, states pain worse on sitting…
There was a CT scan taken:
CT LUMBAR SPINE AND PELVIC BONES
CLINICAL NOTES:
Fall onto legs. Painful sacroiliac joint area.
TECHNIQUE:
Non-contrast study.
FINDINGS:
No prior imaging available for comparison.
The alignment of the lumbar spine is normal. No lumbar spine fracture identified. No paravertebral mass.
The sacroiliac joints are congruent.
Acute minimally displaced vertical fracture […].
CONCLUSION:
Acute minimally displaced vertical fracture […].
I note that the injury was considered by the radiologist, having been given the history, to be consistent with the mechanism of injury and symptoms.
It is not surprising that if you fall on your backside, you are going to get some displacement there. Fortunately, it does not seem to be a very significant injury in terms of the likely long-term disability, but nevertheless, she has a medical certificate from Dr C of D Medical Centre which notes:
…[…] fracture [late] 2024. Considerable pain results in inability to sit / stand for prolonged periods (20-30 minutes). This is expected to last at least for the next 2-3 months but [such] fractures are notorious to cause long term symptoms.
The certificate was completed in early 2025. On the basis of the very long drive and the extended trial period and the need to sit/stand during court proceedings, the mother seeks to give evidence by audio-visual link.
The respondent father opposes that on a variety of grounds. I note that those grounds include the fact that the mother is out of time under the rules.[1] I note that I have the power to waive any compliance with time with the Rules where I to consider it just to do so. The complaint is that if the mother was unable to attend, she should have known immediately.
[1] See, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rule 15.16.
Her solicitor says that she believed she would be able to attend. It seems to me that it is to her credit that, having had the injury, she hoped that she would be able to attend, and indeed, she probably thought the condition would get better more quickly. But, as the doctor notes, these injuries are notorious to cause long-term symptoms, and experience of the world indicates that these low back injuries can take a long time to settle.
To start with, if she has got a 30-minute sit/stand requirement, it is going to take a long time for her to drive down. She is also going to be in a position where it is going to be difficult and inconvenient sitting throughout the trial in court if she has to stand up and move around every 30 minutes, and I am sure she would not intend to disrupt the proceedings, but there is a chance that will occur.
I note that I have an obligation to be satisfied that the place the mother will give evidence is acceptable to the court, and I note that there are concerns in cases such as this about coaching, and certainly, judges of this court, have had issues with that. However, the proposal by the mother's solicitor adequately addresses the statutory requirement in that, in effect, he proposes that he will attend at the location where the mother is giving evidence for the purposes of her giving evidence so that he can satisfy the court that she has not been coached.
And I will indicate now I am not concerned whether he is in the room or not. Sometimes, given the need to take her to court books, that is going to be easier if he is there. But he can do that either at a local legal centre or I consider it will be acceptable to be in a private residence as long as he is also satisfied there is good enough internet, and as long as he, again, can satisfy the court that there is no-one else there.
Weighing all the issues, and noting that during COVID this court, and indeed I, have dealt with extraordinarily complex alleged child sex abuse cases which involve significant complex issues, both of fact and of law and significant credit issues, using electronic means, I am not satisfied that there is any less relevant capacity to assess credit by video and in person, although it is always preferable that people appear in person if they can, for a whole variety of practical reasons.
Nevertheless, in the circumstances, I am satisfied that the mother has met the onus to persuade me that, the interests of justice require that the mother be allowed to attend by audio-visual means on the condition that, during the course of giving her evidence, her solicitor is present with her, that he is able to assure the Court that there is no-one else present to coach her, and that he is in a position to have the printed court books and material and to manage that process and ensure that the materials do not come into the mother's direct possession contrary to the Court’s orders.
In the related matter of Bellerby & Stein, the mother makes a similar application based upon mental health concerns, although the application is more restricted in that she merely seeks to be able to give her evidence from a separate room in the Court building. That is a common procedure.
Allowing the application does not involve making any factual findings. Otherwise, we would never be allowed to do it, because there would be facts in issue about whether there was in fact a mental health condition, or whether there had been family violence, so there is no adverse inference concerning the father having committed acts of family violence, but it is necessary to make these orders based upon a reasonable consideration of the potential harm to the party, in the same way that a discretionary s 102NA order does not involve a finding, it really involves an assessment of allegations and risks.
The application is supported by a certificate from NSW Health which iterates the psychiatric findings and issues. I also allow that application.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 14 February 2025
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