Darley & Darley (No 9)

[2023] FedCFamC1F 748

FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)

Darley & Darley (No 9) [2023] FedCFamC1F 748

File number(s):

BRC 2317 of 2013

Judgment of:

HOGAN J

Date of judgment:

10 August 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – s 102NA of the Family Law Act 1975 (Cth) order discharged

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Division:

First Instance

Number of paragraphs:

9

Date of hearing:

10 August 2023

Place:

Brisbane

Applicant:

Litigant in person

Respondent:

Litigant in person

ORDERS

BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DARLEY

Applicant

AND:

MS DARLEY

Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	10 AUGUST 2023

THE COURT ORDERS THAT:

1.The order made on 26 May 2023 is discharged.

2.By no later than 4.00 pm on 21 August 2023:  the Respondent mother file and serve her trial affidavit.

3.The Respondent mother has leave to file and serve affidavits of no more than four (4) witnesses provided the same are filed and served by no later than 4.00 pm on 21 August 2023.

NOTATION

A.The Court today provided the Applicant and the Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F:  Litigants in Person Guidelines (2001) FLC 93-072.

B.The Court has today advised the parties to have regard to Part 6.1 – Duty of Disclosure of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and, in particular, to Rules 6.01, 6.03, 6.05 and 6.17 of the Rules which relate to disclosure and the consequences of non-disclosure.

C.The Respondent raised today a concern and foreshadowed the possibility of applying for leave to rely on her second affidavit at the trial which may relate to documents received from the children’s hospital.

D.There is no Court known by the name “Federal Circuit and Family Court of Australia”.

E.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under the pseudonym Darley & Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HOGAN J:

1. I have before me an oral application made by Ms Darley that an order be made discharging the order I made on 26 May 2023 that, pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), the requirements of s 102NA(2) of the Act were to apply to the cross‑examination of each of the parties in the proceedings. That order was made on the Court acting on its own initiative. It was also made in Chambers and in the absence of the parties.

2. Pursuant to Rule 10.13(1)(a) of the Rules, the Court may, at any time, vary or set aside an order if it was made in the absence of a party.  Whilst there are, I think, some inherent limitations on the power accorded to the Court by that Rule, they are irrelevant to the current oral application made by Ms Darley. 

3. Mr Darley does not object to Ms Darley’s oral application, nor to the order that she seeks by it: namely, an order discharging the order made on 26 May of this year.  Given that, it is probably strictly unnecessary to record the submissions made by Ms Darley in support of her application.  However, given that they have been made on the record, it seems appropriate that they are recorded in these Reasons delivered orally this morning. 

4. In summary, Ms Darley’s submissions in support of the application for a discharge of the order were as follows: 

   (a)that she did not want an order made under s 102NA; and

   (b)that she does not feel that there is any prejudice to her if she exercises the right to cross‑examine the father personally and not via a legal practitioner;  and

   (c)that, given the contents of the Family Report released most recently, her being accorded the opportunity to cross-examine the father is very important and the trial listed to commence on 28 and 29 August this year cannot properly proceed without her having that opportunity;  and

   (d)that she has previously cross-examined the father and, in doing so, approached the task in a respectful manner;  and

   (e)that she felt very much that it was a matter for her if she wanted to cross-examine the father personally and she felt that she could discharge that task;  and

   (f)that whilst, at least, a purpose of s 102NA of the Act is to prevent perpetrators of family and domestic violence from cross-examining the victims of those actions, she has never been the respondent to a protection order and has not had any findings made against her to suggest that she is the perpetrator of family or domestic violence; and

   (g)that her personal knowledge of the father is such that she will be able to discharge her cross-examination of him in a manner that maximises the prospect of her obtaining from him answers that assist her case and provide bases for the findings of fact sought as part of that case;  and

   (h)that she is concerned to avoid the possibility of legal representatives withdrawing on the eve of the listed trial and does not want the case negatively impacted by such an event if it were come to pass;  and

   (i)that she considers her being able to cross-examine Mr Darley is fundamental to the discharge of a process by which parties to it are accorded both natural justice and procedural fairness. 

5. I intend to accede to the oral application made by Ms Darley. 

6. I note, in doing so, that there was, filed yesterday, a Notice of Ceasing to Act by a legal practitioner who had been engaged on behalf of Ms Darley as a consequence of the s 102NA order.

7. So the reality this morning is that, if the order continues in force and the trial proceeds as listed, neither of these parties to the proceeding will be able to cross-examine each other. 

8. Given that the father does not object to the discharge of the order and given the submissions made by Ms Darley, which I have just recounted in summary form, it seems appropriate and necessary, to ensure that the trial proceeds on its listed hearing dates and that the parents in this matter are accorded appropriate procedural fairness and natural justice and noting that the order was made in the absence of them, that I make an order discharging the order made on 26 May 2023, and I do so. 

9. The order will issue discharging that order.  It will record as a Notation that I have provided the parties with an explanation in discharge of the obligations of the Court as set out in Re F:  Litigants in Person Guidelines (2001) FLC 93-072.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate:       

Dated:       10 August 2023