Boswell and Boswell (No 2)

[2019] FamCA 450

FAMILY COURT OF AUSTRALIA

BOSWELL & BOSWELL (NO. 2) [2019] FamCA 450

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management.

Family Law Act 1975 (Cth)

APPLICANT: Mr Boswell

RESPONDENT: Ms Boswell

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: MLC 11319 of 2013

DATE DELIVERED: 2 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Ms Rothschild

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Macgregor

Orders

1. It is requested that the Manager of Child Dispute Services, inform my associate of the dates of availability for Ms C to be cross examined in this matter after 1 August 2019 and that my associate allocate further hearing dates to this matter as are convenient and notify the parties accordingly.

2. Leave is granted to the mother to make application in relation to her being cross examined by the father, who is an unrepresented litigant, and I dismiss the mother’s oral application.

3. I order that my reasons be transcribed, and when transcribed be published to the parties.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boswell & Boswell (No.2) 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 MELBOURNE

FILE NUMBER: MLC 11319 of 2013

Mr Boswell

Applicant

And

Ms Boswell

Respondent

And

Ms Macgregor

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on the initiative of the Independent Children's Lawyer consequent of the Family Consultant not being available for cross examination.  It has also has proceeded as the mother makes application for me to adjourn the matter until after 11 September or, alternatively, to impose a regime prohibiting the father cross examining the mother in the same way as would be the case if new provisions in relation to cross examination of alleged victims of family violence were operating. 

2. This Court operates on a docket system.  My calendar is full.  If I adjourned the entire hearing until after Ms C returns, I could not accommodate the matter until 2020. 

3. I have considered Ms Rothschild’s submissions and the submissions of the Independent Children's Lawyer and the father.  The preference of the Independent Children's Lawyer and the father is that the matter proceed on consecutive days.  However, they would also prefer a hearing at which all evidence other than Ms C’ evidence is heard, followed by a day to take Ms C’ cross examination, in preference to an adjournment to 2020.

4. This matter has been awaiting hearing for some time.  Ms C’ last report is dated 9 April 2019 and I do not want to risk that report becoming outdated.  It is appropriate that this matter retain its current listing and be finalised this year.  I will do what I can to list a further hearing day in August 2019, for cross examination and final submissions. 

5. It is common ground that were this matter to involve cross-examination that was to commence after 11 September 2019, it would appear on its face to be a matter caught by the new family violence cross-examination ban under s 102NA of the Family Law Act 1975 (Cth) and Commonwealth Family Violence and Cross-examination of Parties Scheme administered by Victoria Legal Aid. However, it is not a matter that falls within that timeframe. This is a matter which has been set down for hearing for a considerable period and it has also been set down for hearing on other occasions and not proceeded for good reasons.

6. The purpose of the legislation is clear but the fact is that it does have an operative date.  The father says he cannot afford representation.  The Victoria Legal Aid scheme is due to commence for matters after 11 September, not before.  It would involve an impost on Victoria Legal Aid that it does not expect and which may see the father not qualify for assistance in any event.  If the father did qualify for assistance, it would involve Victoria Legal Aid trying to assign a lawyer to the father in a period considerably shorter than the lead time, which has been indicated to be six weeks.  

7. It is submitted that the mother is uncomfortable being cross examined by the father.  That is understandable.  I am confident that with some careful control, the discomfort which is understandably felt by the mother being cross-examined by the father in person, will be able to be minimised.  There are certain techniques for that.  It may be that I put the father’s questions to the mother.  We shall see.  I am not now determining how cross examination will proceed, just that it will proceed on the hearing dates which are already allocated. 

8. For the avoidance of doubt, I will not be making any orders which replicate the scheme or have such an arrangement set out before 11 September and, in particular, for this matter.

9. I will order accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 July 2019.

Associate: 

Date:  11 July 2019