DELANCY & THEOBALD - [2019] FCCA 3852

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANCY & THEOBALD

[2019] FCCA 3852

Catchwords:
FAMILY LAW – Practice and procedure – application of s102NA Family Law Act 1975 (Cth) – rationale of this provision.

Legislation:

Family Law Act 1975 (Cth), s.102NA.

Applicant:

MS DELANCY

Respondent:

MR THEOBALD

File Number:

WOC 113 of 2017

Judgment of:

Judge Altobelli

Hearing date:

7 November 2019

Date of Last Submission:

7 November 2019

Delivered at:

Wollongong

Delivered on:

7 November 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr Harper

Solicitors for the Respondent:

Meehans Solicitors

Counsel for the Independent Children's Lawyer:

Ms Stolier

Solicitors for the Independent Children's Lawyer:

Mark Whelan Lawyer

ORDERS

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim Orders be made in accordance with the document marked “A” dated this day 7 November 2019 and attached hereto.
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 Applicant must not cross-examine the Respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Applicant.
Within 7 days, the Applicant complete the “Scheme Application Form” and provide to Legal Aid NSW (CrossExamScheme@legalaid.nsw.gov.au) for the allocation of a legal practitioner.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days notice by application to the Court in Chambers in appropriate circumstances.
The matter be adjourned for a 1 day Final Hearing on 4 May 2020 at 9:00am.

THE COURT NOTES THAT:

A.Pursuant to s.102NA(1), there is an allegation of family violence between the Applicant and the Respondent.
B.The parties have each been advised by the Court that:
a.pursuant to those requirements, neither party may cross-examine the other party personally;
b.pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d.a copy of these Orders will be provided by the court to Legal Aid NSW, which administers the said scheme.

C.If the Applicant fails to apply to Legal Aid NSW for legal representation pursuant to these Orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.

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

“A”

Pending Further Orders:

That the mother shall undergo hair drug testing on four occasions each calendar year and for that purpose:
1.1The collection shall be between
1.1.115 and 22 January
1.1.215 and 22 April
1.2The testing shall be at the expense of the father.
1.3The mother shall undertake a hair drug test with Australian Workplace Drug Testing (AWDTS) of…

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 DELANCY & THEOBALD

Details

AGLC: Delancy and Theobald [2019] FCCA 3852
Case: [2019] FCCA 3852
Decision Date: 7 November 2019

CaseChat Overview and Summary

In the matter of *Delancy & Theobald*, heard by Judge Altobelli of the Federal Circuit Court of Australia, the dispute concerned an application where an allegation of family violence had been made between the Applicant and the Respondent.

The court was required to determine the application of section 102NA of the *Family Law Act 1975* (Cth) to the proceedings, specifically in relation to the cross-examination of parties. The legal issues revolved around whether the parties could personally cross-examine each other, and if not, how legal representation for cross-examination would be facilitated.

The court reasoned that pursuant to section 102NA(1) of the Act, an allegation of family violence had been made, triggering the provisions of section 102NA(2). This section mandates that neither party may cross-examine the other party personally, and any cross-examination must be conducted by a legal practitioner. The court noted that both parties had been advised of these requirements and the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme. Consequently, the court made interim orders requiring the Applicant to apply to Legal Aid NSW for the allocation of a legal practitioner to conduct any cross-examination on their behalf. The matter was adjourned for a final hearing.

Orders

Orders of the court

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim Orders be made in accordance with the document marked “A” dated this day 7 November 2019 and attached hereto.

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 Applicant must not cross-examine the Respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Applicant.

Within 7 days, the Applicant complete the “Scheme Application Form” and provide to Legal Aid NSW (CrossExamScheme@legalaid.nsw.gov.au) for the allocation of a legal practitioner.

Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days notice by application to the Court in Chambers in appropriate circumstances.

The matter be adjourned for a 1 day Final Hearing on 4 May 2020 at 9:00am.

THE COURT NOTES THAT:

A. Pursuant to s.102NA(1), there is an allegation of family violence between the Applicant and the Respondent.

B. The parties have each been advised by the Court that:

a. pursuant to those requirements, neither party may cross-examine the other party personally;

b. pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

c. as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

d. a copy of these Orders will be provided by the court to Legal Aid NSW, which administers the said scheme.

C. If the Applicant fails to apply to Legal Aid NSW for legal representation pursuant to these Orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.

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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