Boswell and Boswell (No 3)

[2019] FamCA 493

FAMILY COURT OF AUSTRALIA

BOSWELL & BOSWELL (NO. 3) [2019] FamCA 493

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management – adjournment application dismissed – Court’s power to order indirect cross-examination in family violence related proceedings prior to coming into operation of the provisions of s102NA of the Family Law Act 1975 (Cth) – abridging return date and times for service of subpoenas issued to be returnable on date but which each parents’ case is anticipated to be closed.

Evidence Act 1995 (Cth)
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: 11 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Rothschild Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Macgregor Lawyers

Order One

IT IS ORDERED THAT:

1. The return date of the subpoenas to produce documents issued at the behest of the Independent Children's Lawyer to the proper officers of E School and G School be abridged to Monday 15 July 2019 or so soon thereafter as the officers of the respective schools can comply.

2. The time for service of the subpoenas on the proper officers of the schools be abridged so that, if the subpoenas have not already been served, service may be effected by electronic means by Friday 12 July 2019 at 12.00pm.

3. A sealed copy of this Order be served on each recipient of the subpoena by electronic means.

4. Until further order the Independent Children's Lawyer may limit but not expand the documents to be produced by the recipients of the subpoenas in order to make compliance with the subpoenas practicable. 

Order Two

IT IS ORDERED THAT:

1. Documents produced on subpoena by Mr F, psychologist, be released for inspection by the father only pending further order of the Court.

2. The mother’s oral application for the matter not to proceed next week be and is hereby refused.

3. The mother’s further oral application in relation to cross-examination of the mother by the father be and is hereby refused.

4. The letter of Dr J be marked exhibit “M1” and remain on the Court file.

5. In the event that the mother seeks to rely on the evidence of Dr J for the final hearing which commences next Monday, 15 July 2019, the mother do all acts and things necessary to make Dr J available for cross-examination personally at 10 am on Monday and to bring with her all her notes and files pertaining to the mother.

IT IS NOTED:

A.That, if a party fails to appear at the final hearing or any part thereof, unless expressly excused by the Court from doing so, that party should assume that the trial will proceed in his or her absence and without any further input from him or her.

B.That, if a party who is represented, ceases to be represented prior to the commencement of the trial on Monday 15 June 2019 that party should assume that he or she must conduct of the case in person.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boswell & Boswell 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

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me at the request of the mother, seeking that proceedings that are due to commence on Monday 15 July 2019, not commence on Monday but commence in August for however many days I can allocate them and then proceed after that as and when I am available.

2. The parties well know that the state of my list is such that hearing dates are scarce.  This matter was set down in February of this year for a hearing of five days to commence on Monday 15 July 2019. 

3. The mother says that she needs more than the day on Monday to digest documents which might be produced by E School and G School on subpoena issued on the behalf of the ICL.  If I were to grant the mother’s application, the proceedings would commence for one day in August and then could not be resumed until perhaps next year.  That is simply not a proper way to proceed in this matter. 

4. The matter has been set down for hearing for several months now.  If the parties have not before now marshalled the evidence upon which they wanted to rely and which they could reasonably expect they would have to face, it is too late to complain.  The mother has known at all times where the children were at school.  If she wanted to look at documents that are in the possession or custody of the school for her case, it has been open to her to cause subpoenae to issue to get those documents to Court.  The ICL says that the lateness of the subpoena arises because of information from a mediation conference; inferentially a recent mediation.  The timing of the matter is unfortunate, but it is not such that I am convinced that the best interests of these three children will be served by further disrupting the hearing or not having the matter proceed next week. 

5. The mother’s application for the matter not to proceed next week is refused.

   RECORDED : NOT TRANSCRIBED

6. The practitioner for the mother seeks, again, an order that the mother not be cross-examined personally by the father at the forthcoming hearing. She seeks, specifically, that I make orders which would replicate the arrangement as if the amending legislation was currently in force, that is, that I order that the father not be permitted to cross-examine the mother, but that a practitioner appearing on behalf of the father cross-examine the mother. The father is not legally represented. The amended legislation is s102NA of the Family Law Act 1975 (Cth). The central question is what jurisdiction I would have to make such an order.

7. Section 27 of the Evidence Act1995 (Cth) provides that a party may question any witness by way of cross-examination. Section 69ZX(2) of the Family Law Act1975 (Cth) provides that I have certain powers in relation to cross-examination in that I can limit or disallow cross-examination. To my mind, the power to limit cross-examination does not extend to requiring a person to employ a practitioner to cross-examine another party on his or her behalf. Amending legislation has been enacted vesting the court with such power.

8. The issue is otherwise whether I will not permit the mother to be cross-examined by the father at all.  It is contrary to the interests of the children that the mother’s evidence not be tested. 

9. The cross-examination will proceed with the father cross-examining the mother personally, subject to directions I make during cross-examination.

10. The mother’s further application for the mother not to be cross-examined by the father is hereby refused.

11. The letter of 4 July 2019 from Dr J will be marked exhibit “M1” and is to remain on the Court file.  It reads as follows:

    [Ms Boswell] has been my patient for approximately 8 years. 

    I am aware of the domestic violence that she has been a victim of.  Today she presented in a particularly anxious state as a result of the order that her ex husband may be permitted to cross examine her himself.

    I submit that her ex husband should not be permitted to cross examine [Ms Boswell] as this would severely exacerbate her anxiety likley [sic] preventing her from repsonding [sic] appropriately.

    She is currently unfit to appear in court due to her anxiety.

12. If the mother wishes to re-agitate her application for an adjournment due to ill health on Monday, the mother must have Dr J available for cross-examination on Monday at 10.00am.

13. The relief in relation to abridging the return date and short service of subpoenas should be communicated urgently to the school and Victoria Police.  Accordingly, I will have that part of my Order engrossed as “Order One” and the balance of the orders made today as “Order Two”.  The Independent Children's Lawyer should facilitate service as soon as possible.  The objective is to have the necessary documents produced for this first tranche of the final hearing rather than waiting until August 2019.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 July 2019.

Associate: 

Date:  24 July 2019