Danniell & Mounce

Case [2021] FamCA 594


FAMILY COURT OF AUSTRALIA

Danniell & Mounce [2021] FamCA 594

File number(s): SYC 5699 of 2016
Judgment of: ALTOBELLI J
Date of judgment: 9 August 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application of s 102NA of the Family Law Act 1975 (Cth) – where the solicitors for the wife have come off the record in close proximity to the final hearing – whether it is appropriate to apply the mandatory or discretionary provisions of s 102NA – order made pursuant to discretionary provisions of s 102NA – final hearing adjourned.
Legislation: Family Law Act 1975 (Cth) s 102NA
Cases cited:

Delancy & Theobald [2019] FCCA 3852

Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90

Re K (1994) FLC 92-461

Number of paragraphs: 20
Date of last submission/s: 9 August 2021
Date of hearing: 9 August 2021
Place: Sydney
Counsel for the Applicant: Mr Campton SC
Solicitor for the Applicant: Lander & Rogers
The Respondent: In person

ORDERS

SYC 5699 of 2016
BETWEEN:

MR DANNIELL

Applicant

AND:

MS MOUNCE

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

9 AUGUST 2021

THE COURT ORDERS THAT:

1.The final hearing listed for five days commencing 16 August 2021 be vacated.

2.The matter be adjourned to 16 August 2021 at 10am for possible interim hearing.

3.The matter be listed for final hearing on 6 December 2021 at 10am, with an estimated hearing time of five days.

4.By no later than 4pm on 12 August 2021, the Applicant is to file and serve a Case Outline document setting out:

(a)a list of documents to be read in their case;

(b)a precise Minute of Orders Sought;

(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

5.By no later than 4pm on 13 August 2021, the Respondent is to file and serve a Case Outline document setting out:

(a)a list of documents to be read in their case;

(b)a precise Minute of Orders Sought;

(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

6.Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be urgently appointed for the child X born … 2015 and the Legal Aid Commission of New South Wales is requested to provide such representation by appointing a senior in-house solicitor in this role.

7.Once appointed, the parties provide to the Independent Children’s Lawyer copies of all documents filed by them in these proceedings, together with all existing Orders and copies of any relevant reports, within seven days of such a request being made.

8.Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

9.Leave be granted to the Independent Children’s…

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Danniell & Mounce [2021] FamCA 594
Case
[2021] FamCA 594
Decision Date

CaseChat Overview and Summary

In the matter of *Danniell & Mounce*, heard before Altobelli J, the dispute concerned an application relating to the conduct of a final hearing in family law proceedings. The wife's solicitors had withdrawn from the record shortly before the scheduled final hearing, raising questions about the application of section 102NA of the *Family Law Act 1975* (Cth).

The court was required to determine whether the mandatory or discretionary provisions of section 102NA of the *Family Law Act 1975* should apply in the circumstances, particularly given the late withdrawal of the wife's legal representation. This section governs the circumstances under which parties may cross-examine each other in family law proceedings.

Altobelli J applied the discretionary provisions of section 102NA, acknowledging the unusual circumstances presented by the solicitors' withdrawal. The court ordered that the final hearing, initially listed for five days commencing 16 August 2021, be vacated and adjourned. The matter was relisted for a final hearing on 6 December 2021. Further orders included directions for the filing of Case Outlines by both parties, the urgent appointment of an Independent Children’s Lawyer, and specific provisions regarding the Independent Children’s Lawyer's access to documents and ability to issue subpoenas. Crucially, the court ordered that the respondent must not cross-examine the applicant personally, and any cross-examination must be conducted by a legal practitioner, reflecting the application of section 102NA(2). The respondent was also directed to complete a Scheme Application Form for the allocation of legal representation.

Orders

Orders of the court

SYC 5699 of 2016

BETWEEN:

MR DANNIELL

Applicant

AND:

MS MOUNCE

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

9 AUGUST 2021

THE COURT ORDERS THAT:

1. The final hearing listed for five days commencing 16 August 2021 be vacated.

2. The matter be adjourned to 16 August 2021 at 10am for possible interim hearing.

3. The matter be listed for final hearing on 6 December 2021 at 10am, with an estimated hearing time of five days.

4. By no later than 4pm on 12 August 2021, the Applicant is to file and serve a Case Outline document setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

5. By no later than 4pm on 13 August 2021, the Respondent is to file and serve a Case Outline document setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

6. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be urgently appointed for the child X born … 2015 and the Legal Aid Commission of New South Wales is requested to provide such representation by appointing a senior in-house solicitor in this role.

7. Once appointed, the parties provide to the Independent Children’s Lawyer copies of all documents filed by them in these proceedings, together with all existing Orders and copies of any relevant reports, within seven days of such a request being made.

8. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

9. Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena or pursuant to s 69ZW of the Family Law Act 1975 or ss 245D and 248 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) in these proceedings.

10. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

11. UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 11 September 2019, the Respondent must not cross-examine the Applicant personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Respondent.

12. Within seven days of the date of these orders, the Respondent complete the “Scheme Application Form” and provide to Legal Aid NSW (…@legalaid.nsw.gov.au) for the allocation of a legal practitioner.

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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