Cavelli & Selden

[2021] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA

Cavelli & Selden [2021] FCCA 605

File number(s):

MLC 4923 of 2019

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

11 March 2021

Catchwords:

FAMILY LAW – Parenting – s 102NA engaged, prohibiting parties from cross-examining each other personally – party’s lawyers ceasing to act shortly before final hearing – adjournment application – application refused.

Legislation:

Family Law Act 1978 (Cth) s 102NA

Explanatory Memorandum, Family Law Amendment(Family Violence and Cross-Examination of Parties) Bill 2018 (Cth)

Cases cited:

Garrod v Davenort [2018] FamCA 825

Queensland v J L Holdings Pty Ltd [1997] HCA 1)

Number of paragraphs:

24

Date of last submissions:

11 March 2021

Date of hearing:

11 March 2021

Place:

Melbourne

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Heggie

Solicitor for the Respondent:

Hargreaves Family Lawyers

ORDERS

MLC 4923 of 2019

BETWEEN:

MR CAVELLI

Applicant

AND:

MS SELDEN

Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	11 MARCH 2021

THE COURT ORDERS THAT:

1.The Father’s oral application to adjourn the final hearing be refused.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

BACKGROUND

1. This is an application for an adjournment of a parenting trial that has been pending in the Court since 2019.  The parties in this matter commenced their relationship in 2015 and separated in 2017.  It was a brief relationship.  The parties were unable to work out parenting arrangements between themselves. Attempts at Family Dispute Resolution were unsuccessful.  The matter also came to the attention of police, who issued a Family Violence Safety Notice to protect the mother and child, X in July 2018, which resulted in a Final Family Violence Intervention Order being made on 30 August 2018, effective for a period of five years.

2. In November 2018, the father was convicted for persistently contravening the Family Violence Intervention Order and was sentenced to a Community Corrections Order, community work and other orders.  Since then, further breach proceedings have been brought by the police.   At present, breach proceedings are pending in the State Courts.

3. The matter has been pending in this Court on parenting issues since 2019, when the father filed his Initiating Application in May of that year.  Both parties have been represented throughout the proceedings, until recently, when the father’s lawyers, ‘Resolve Conflict Lawyers’, withdrew on 1 March 2021. Neither party has been in receipt of Legal Aid assistance.  The matter has had a number of Court events since it commenced. Orders were made by Judge Blake on 16 July 2019, 25 November 2019, 17 December 2019, and 14 April 2020, and then by myself on 9 March 2021. 

   APPLICATION FOR ADJOURNMENT

4. The father attends at Court today unrepresented, having filed no material for trial and seeks that the trial of this matter be adjourned.  He says that he has lost the assistance of his lawyers and that he is, therefore, not ready for trial.  He says that his lawyers had charged him very significant fees (of around $70,000 to $80,000) for the conduct of the case prior to preparation of trial Affidavits, which he said was largely used for correspondence or emails between the parties.  It is a large sum, considering that the father’s filed documents consists of an Application, three Affidavits and an Outline of Case filed for one of the interim hearings.

5. The father has not filed affidavits or an outline for the current trial, despite on 15 February 2021 his lawyers seeking an extension of time to do so until 25 February 2021. Trial documents were not filed by the father even on the date of the extension as sought by his lawyers, who later withdrew on 1 March 2021.

6. This leaves the father confronting two problems at the trial:

   (1)First, he has not filed any documents other than the original Affidavits that appear on the Court file; and

   (2)Second, he is not in a position where he is able to personally cross‑examine the mother, due to the effects of s 102NA of the Family Law Act 1978 (Cth) (‘the Act’), which imposes a mandatory ban upon personal cross‑examination by him of the mother, due to the final Family Violence Intervention Orders in force.

7. Section 102NA of the Act relevantly provides that:

   (1)      If, in proceedings under this Act:

   (a)a party (the examining party) intends to cross examine another party (the witness party); and

   (b) there is an allegation of family violence between the examining party and the witness party; and

   (c) any of the following are satisfied:

   …

   (ii) a family violence order (other than an interim order) applies to both parties;

   …

   then the requirements of subsection (2) apply to the cross examination.

   (2)     Both of the following requirements apply to the cross-examination

   (a)the examining party must not cross-examine the witness party personally;

   (b) the cross examination must be conducted by a legal practitioner acting on behalf of the examining party.

8. The father must have been aware of the s 102NA requirement from the outset, as Judge Blake in his orders of 16 July 2019, included careful notations setting out the effect of s 102NA and, importantly, the ability of parties (that may be affected by that section), to apply for funding under the Commonwealth Family Violence and Cross‑Examination of Parties Scheme for representation. The notation also sets out the key piece of information that any such application must be made at least 12 weeks prior to the final hearing.

9. As I understand it, Victoria Legal Aid administration is unable to process the applications in less than six weeks prior to a hearing.  As a result of the father’s lawyers ceasing to act only on 1 March 2021, it was not possible for Victoria Legal Aid to process any such application, had it been forthcoming from the father, to arrange funding for him to have a lawyer for the hearing today.  I note in passing that when the Notice of Ceasing to Act was brought to the attention of my Associate, she did supply the referral documents directly to Victoria Legal Aid, in accordance with the administration arrangements between the Courts’ administration and that of Victoria Legal Aid. My Associate was notified it was too close to trial for Victoria Legal Aid to appoint representation for the father for this trial date.

10. The provisions set out in s 102NA are in place to minimise the impact upon victims of family violence of the processes of the Court.  In many cases, victims will be confirmed victims of violence, as a result of specific findings, either in the family law Courts or the State Magistrates Courts.  In other cases, the issue remains a question for hearing, but where significant allegations have been made, and, importantly, in cases such as this, resulted in a Final Family Violence Intervention Order, which has not been actively contested in the Courts.

11. Importantly, the Court has a discretion in cases where there is not a Final Family Violence Intervention Order, as to whether or not to impose the restrictions that the provisions contain.  As discussed in the Explanatory Memorandum for this legislative amendment to the Act, that discretion is available in part, to ensure that litigants could not simply obtain an urgent temporary Family Violence Intervention Order close to trial, which would have the effect of stopping the trial proceeding because of an automatic ban on cross‑examination: see Explanatory Memorandum, Family Law Amendment(Family Violence and Cross-Examination of Parties) Bill 2018 (Cth), paragraph 23, page 10.

12. The purpose of the discretion is to ensure that one party cannot use the Court process to effect a form of systems abuse on the other. It must be accepted that misuse of Court processes can also amount to family violence: see Garrod v Davenort [2018] Fam CA 825.

13. In this case the Final Family Violence Intervention Order was in place well before any Court directions in this matter. That order had the effect of engaging the provisions of s 102NA and stopping the father from personally cross‑examining the mother.  This was drawn both to the father’s attention (and his solicitors) in notations in Judge Blake’s orders of 16 July 2019, and again, when his Honour made trial directions in this matter on 17 December 2019, setting the matter down for trial early this year.

14. In answer to questions that arose out of the father’s proposal around obtaining representation, if the matter were to be adjourned, he said that he hoped he would have sufficient funds for a lawyer (which he estimated to be $30,000 within six months). However, the father says he is only working as a labourer earning around $550 per week and has no other money. It is apparent that he would not be able to amass sufficient funds within six months if an adjournment were granted on that basis.  The father raised, in answer to this concern, that he has had an offer of employment with Employer B, where he would earn between $40 to $45 per hour, which would be a weekly total income of around $1,600 or more. Further, he says that all of this other living expenses would be met by relatives who support him and with whom he lives.  Even on that version of events, it seems unlikely to me that the father would have sufficient funds if he wished to engage the lawyers that are going to charge him $30,000 to be ready for trial. 

15. The lawyers that he had engaged were acting for some time, and had sought an extension of time to file material.  However, it does not appear that active steps were taken to prepare the father’s case for trial, nor to engage in the fall-back position of applying to Victoria Legal Aid under the relevant s 102NA scheme, to ensure that he had representation for the trial date.

16. In submissions, the father said that he had not applied for Legal Aid even now, as he would rather have his previous lawyers than lawyers appointed by Legal Aid under the s 102NA appointment scheme.  I am not persuaded there is any real likelihood that he is going to apply for Legal Aid, given that he has chosen not to, even though this date has been set down for quite some time, and further, that he has expressed he does not wish to apply in any event.

17. I note that the original trial date was set for 11 February 2021, however, was adjourned to today by way of an administrative relisting notice sent on 31 August 2020.  There can be no question that the father was caught by surprise by the change of trial date, as the change in date gave him more time to prepare, rather than less time.

18. The mother is represented by solicitors and Counsel. She is not in receipt of Legal Aid. She earns around $100,000 per annum working for a large company as an employee.  She receives no child support. Her Counsel estimates that on the Court scale, the costs thrown away by an adjournment would exceed $9,000 and on a solicitor-client basis would be around $12,000. There is no prospect that the father would be able to meet those costs. He has no funds at present and the adjournment, if granted, would require him to save every cent he earns and be supported by his family to be able to pay his lawyers to appear on the next occasion.

19. The father said that his lawyer had not told him of the cross‑examination funding scheme.  However, it was clearly set out in the Court orders. Furthermore, in cases where the mandatory provisions of s 102NA are engaged it seems unlikely that a solicitor would not inform their client of the effect of s 102NA, the availability of Legal Aid, and the potential consequences of not applying for legal aid at least 6 weeks before trial. A failure of a solicitor to give clear and timely advice to a client of these matters may well leave the solicitor open to costs orders and misconduct complaints.

20. In this case, a refusal to adjourn the trial will result in a real impediment to the father putting his case. There is a family report that makes recommendations which significantly restrict any time that the father would have with the child.  The family report writer has not yet been put on notice by the father that she is required for cross‑examination.  Whether she would be available to be cross‑examined by him at trial is unclear at present.  The father would not be able to cross‑examine the mother on her evidence, and the father would be constrained to the Affidavits that he has lodged to date, which are now quite old.  The matter concerns contact arrangements with the child and, therefore, concerns the child’s best interests, in particular the right to have a relationship with each parent, and the nature of that relationship. The procedural fairness implication of s 102NA in the context of this case is significant. 

21. Against these considerations, is the reality that the mother has been living with this litigation for almost two years.  She has spent considerable sums to be ready for trial today and is unable to recover those costs from the father.  The father has not even offered to attempt to meet those costs which would be thrown away by an adjournment. In any event, “costs orders are not necessarily an adequate balm” as explained by the High Court of Australia at paragraph [6] in Queensland v J L Holdings Pty Ltd [1997] HCA 1. The father has not filed any material, despite having over a year to prepare material and file Affidavits. His previous lawyers had sought an extension of time to file material, but he still did not file any Affidavits. In the time since the direction orders were made, it seems that the father has done little or nothing to prepare for trial in this matter.

22. The history of proceedings in the State Magistrates Court indicates a long history of family violence proceedings and a number of convictions for breaching the family violence orders. It seems to me that in this case, there is a good argument that the father’s conduct resulting in numerous breaches of the family violence orders has been to perpetuate family violence against the mother.

23. To allow the father’s application to adjourn the proceedings would allow him to use the very provisions that were enacted for the mother’s protection in the processes of the Court to disadvantage the mother, in this case both financially and emotional, as the litigation will be delayed. It is not appropriate to allow the operation of s 102NA to result in such a disadvantage to the very person it is intended to protect.  

    CONCLUSION

24. When considering the matter as a whole, I am not persuaded that the father has shown sufficient circumstances to justify adjourning the trial of this matter. I therefore refuse the father’s adjournment application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       26 March 2021