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

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

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

The matter is adjourned for trial to commence on 11 May 2020 for a period of four days.
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.
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.
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.
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.
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.
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.
The matter is listed for further trial directions at 10am on 17 April 2020.

IT IS NOTED THAT

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

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

IT IS NOTED THAT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chard and Yong (No 2)

Details

AGLC: Chard and Yong (No 2) [2019] FamCA 948
Case: [2019] FamCA 948
Decision Date: 9 December 2019

CaseChat Overview and Summary

In *Chard and Yong (No 2)*, Gill J considered an application in proceedings involving the Father and the Mother. The specific nature of the dispute is not detailed, but the orders indicate it concerns matters requiring a trial and involves an Independent Children's Lawyer.

The primary legal issue before the court was whether section 102NA of the relevant legislation applied to the hearing, which would preclude personal cross-examination. The court also had to determine the procedural steps and timelines for the filing of evidence and the conduct of the trial.

The court determined that section 102NA did apply, meaning personal cross-examination would not be permitted. The court then made detailed orders regarding the filing of consolidated affidavits by both the Father and the Mother, setting specific deadlines for their service. Further directions were given for the Father to notify the other parties if he intended to rely on previously filed witness material, and for the filing of responding affidavits. The court also stipulated that parties would generally be restricted to relying on affidavit material filed in accordance with these orders, with limited exceptions. Subpoenas were to be made returnable no later than 28 days before the trial, and further trial directions were scheduled.

Orders

Orders of the court

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

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

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.

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.

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.

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.

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.

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.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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