Chard and Yong (No 2)

[2019] FamCA 948

FAMILY COURT OF AUSTRALIA

CHARD & YONG (NO. 2) [2019] FamCA 948

FAMILY LAW – PRACTICE AND PROCEDURE – Ban on Cross-Examination – s 102NA

Family Law Act 1975 (Cth)
APPLICANT:	Mr Chard

RESPONDENT: Ms Yong

INDEPENDENT CHILDREN’S LAWYER: Ms Donoghoe

FILE NUMBER: CAC 1638 of 2016

DATE DELIVERED: 9 December 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 9 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Strong Law Pty Ltd

Orders

1. The provisions of s 102NA apply to the hearing of this matter and personal cross-examination will not be permitted.

IT IS FURTHER ORDERED THAT

1. The matter is adjourned for trial to commence on 11 May 2020 for a period of four days.

2. The Father is to file and serve a single consolidated affidavit from each witness he intends to rely upon at the final hearing by 4pm on 17 March 2020.

3. Where the Father seeks to rely upon a witness or affidavit from a witness previously filed than he is to give notice of that fact in writing to the Independent Children's Lawyer and to the solicitors for the Mother by 4pm on 17 March 2020. 

4. The Mother is to file and serve a single consolidated affidavit from herself and each witness she intends to rely upon by 4pm on 14 April 2020.

5. The Father may file affidavit material responding to matters raised by the Mother but not previously dealt with by him in his affidavit material by no later than 4pm on 21 April 2020.

6. The parties will not be entitled to rely upon any other affidavit filed in these proceedings other than as directed in the immediately preceding orders or in accordance with a notice in writing that the Father has been directed to serve on the other parties.

7. The legally represented parties are at liberty to request the issue of subpoenas made returnable no later than 28 days before the commencement of the trial. 

8. The matter is listed for further trial directions at 10am on 17 April 2020.

IT IS NOTED THAT

1. At the re-listing of the matter for trial directions it will be necessary to deal with any mechanisms that are necessary to provide Dr D with further documents prior to Dr D being cross-examined as the Father says that there are a series of documents that were not provided to Dr D which are salient to his report and which he will be required to read, in order to be cross-examined.

IT IS FURTHER ORDERED THAT

1. Dr D is granted liberty to appear by telephone at the trial of the matter.

IT IS NOTED THAT

1. The Father has been advised that will be necessary for him to take these orders which deal with the s 102NA matters to the Legal Aid Office to obtain legal representation and that the consequence of failing to retain legal representation will be the conduct of a trial where he is unable to cross-examine the Mother.

IT IS FURTHER ORDERED THAT

1. Any party may seek the relisting in this matter on seven days’ notice should an issue arise that impacts upon the conduct of the trial, including should there be an issue with the Father obtaining legal representation following the making of the s 102NA order.

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 Chard & Yong 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 CANBERRA

FILE NUMBER: CAC 1638 of 2016

Mr Chard

Applicant

And

Ms Yong

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties have raised with me the application of s 102NA which deals with cross-examination of parties where allegations of family violence have been made.  In these proceedings each of the parties makes serious allegations of family violence against the other.

2. The Father, as part of his case, asserts that he was the subject of persistent ongoing regular family violence perpetrated upon him at the hands of the Mother.  He says that he is able to bring evidentiary support for this proposition through third parties.  He asserts to the Court that he does not think he should and does not think he would be able to cross-examine the Mother personally without the assistance of a lawyer under those circumstances. 

3. Similarly, the Mother alleges that she has been the subject of extreme family violence.  Some commentary in relation to that has been given in the most recent Family Report.  It is reasonable to think that it would be an untenable position for each of the parties should one be required to personally cross-examine the other whoever was being asked the questions, or whoever was asking the questions.

4. There has previously been a final family violence order in place, although it is no longer in place, and so does not attract the mandatory application of s 102NA.  However the matters that I have identified give ample reason to apply s 102NA to these proceedings and I will do so noting that that is done in the context of government assurances having been made of the funding of legal representation. 

5. Accordingly, it is ordered that the provisions of s 102 NA apply to this case such that the examining party must not cross-examine the witness party personally and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 9 December 2019.

Associate:

Date:  11 December 2019