FAMILY COURT OF AUSTRALIA
Donalds & Donalds (No. 2) [2021] FamCA 574
File number(s): MLC11505/2020 Judgment of: BENNETT J Date of judgment: 27 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – split hearing to be conducted between Melbourne and Newcastle.
FAMILY LAW – EVIDENCE – admissibility – relevance – expert evidence – self represented litigants.
Legislation: Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Cases cited: Donalds & Donalds (first day) [2021] FamCA 521 Number of paragraphs: 27 Date of hearing: 27 July 2021 Place: Melbourne Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Joseph David Lawyers Solicitor for the Respondents: Appearing in Person Solicitor for the Respondents: Appearing in Person Counsel for the Independent Children's Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC11505/2020 BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
First Respondent
MS GREGG
Second Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
27 JULY 2021
THE COURT ORDERS THAT:
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have each been advised by the court:
(a)that pursuant to those requirements, neither party may cross-examine the other party personally;
(b)that 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)that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.
IT IS ORDERED THAT;
1.The father make application to Victoria Legal Aid under the Cross-Examination Scheme for representation at the final hearing as contemplated by s 102NA (2) of the Family Law Act 1975.
2.The Application in a Case of the maternal grandmother, Ms Gregg, dated 14 July 2021 be filed this day and made returnable this day and the maternal grandmother forthwith arrange for service of the Application in a Case on each other party to the proceedings by electronic means.
3.That this matter be fixed for final hearing before me as follows:
(a)24, 25, 26 and 27 August 2021 in the Melbourne Registry of the Family Court of Australia; and
(b)9, 10, 16 and 17 September 2021 in the Newcastle Registry of the Family Court of Australia, New South Wales;
(“the final hearing”).
4.Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her/their case, such documents to be filed to be as follows:-
(a)The following witnesses of the mother as described in her outline of witnesses as being witnesses in respect of whom the mother proposes to rely on further evidence other than that…
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- Case
- [2021] FamCA 574
- Decision Date
CaseChat Overview and Summary
The court was required to determine several issues, including the admissibility of evidence, the conduct of a split final hearing between Melbourne and Newcastle registries, and the application of section 102NA(2) of the *Family Law Act 1975* concerning the cross-examination of parties. The court also addressed the preparation of an updated family report and the specific matters it should address, as well as the filing and service of various documents, including case outlines, witness lists, and amended applications.
Bennett J reasoned that the requirements of section 102NA(2) necessitated that neither party could cross-examine the other personally, and such cross-examination could only be conducted by a legal practitioner. To facilitate this, the father was ordered to apply to Victoria Legal Aid for representation under the Cross-Examination Scheme. The court also clarified the mother's reliance on affidavits, specifying that only her affidavit sworn on 13 July 2021 and a forthcoming updating affidavit would be considered, rather than a broader range of previously filed affidavits. The court emphasised the principle of relevance under section 55 of the *Evidence Act 1995* (Cth), distinguishing between mere allegations and evidence that could rationally affect the assessment of a fact in issue.
The court made extensive orders regarding the conduct of the proceedings. These included scheduling the final hearing across August and September 2021 in both Melbourne and Newcastle, directing the preparation of an addendum family report, and setting strict deadlines for the filing and service of all affidavit material and other documents. The court also issued orders restraining the removal of the children from Australia and requested the Australian Federal Police to place the children on the Airport Watch List. Further directions were given for the preparation of an electronic court book, participation in round table conferences, and the provision of information to Victoria Legal Aid. The court also noted that failure to attend or comply with filing requirements could result in the matter proceeding without the defaulting party's input.
Orders
Orders of the court
MLC11505/2020
BETWEEN:
MR DONALDS
Applicant
AND:
MS DONALDS
First Respondent
MS GREGG
Second Respondent
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
27 JULY 2021
THE COURT ORDERS THAT:
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have each been advised by the court:
(a) that pursuant to those requirements, neither party may cross-examine the other party personally;
(b) that 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) that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.
IT IS ORDERED THAT;
1. The father make application to Victoria Legal Aid under the Cross-Examination Scheme for representation at the final hearing as contemplated by s 102NA (2) of the Family Law Act 1975.
2. The Application in a Case of the maternal grandmother, Ms Gregg, dated 14 July 2021 be filed this day and made returnable this day and the maternal grandmother forthwith arrange for service of the Application in a Case on each other party to the proceedings by electronic means.
3. That this matter be fixed for final hearing before me as follows:
(a) 24, 25, 26 and 27 August 2021 in the Melbourne Registry of the Family Court of Australia; and
(b) 9, 10, 16 and 17 September 2021 in the Newcastle Registry of the Family Court of Australia, New South Wales;
(“the final hearing”).
4. Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her/their case, such documents to be filed to be as follows:-
(a) The following witnesses of the mother as described in her outline of witnesses as being witnesses in respect of whom the mother proposes to rely on further evidence other than that which has already been filed:
(i) Mr J;
(ii) Ms L;
(iii) Mr B;
(iv) Ms H;
(v) Mr K;
(vi) Ms M;
(vii) Ms O;
(viii) Ms N;
(ix) Ms P;
(x) Mr R;
(xi) Ms Q;
(xii) Mr T;
(xiii) Mr S;
(xiv) Ms V;
(xv) Ms U;
(xvi) Ms W;
(xvii) Ms Z;
(xviii) Ms AA;
(xix) Ms BB;
by not later than 2 August 2021
(b) The applicant father by 6 August 2021;
(c) The second respondent maternal grandmother by 9 August 2021;
(d) The respondent mother as to her own evidence by 13 August 2021 NOTING THAT this evidence will supplement the mother’s affidavit of evidence in chief sworn 12 July 2021 but the mother will not rely on her other affidavits already filed;
(e) The applicant father in reply by 20 August 2021.
5. Pursuant to section 62G(2) of the Family Law Act 1975 an update/addendum family report be prepared. For that purpose the maternal grandmother and children X, male, born … 2019 and Y, male, born … 2021 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of the addendum Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced by not earlier than 13 August 2021 and be released by not later than 18 August 2021 AND IT IS NOTED THAT an earlier family report has been prepared by Mr F.
6. The family report deal with the following matters:-
(a) any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that may affect the weight that the court should place on those views;
(b) the matters set out in s60CC of the Family Law Act;
(c) an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(d) recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible.
7. For the avoidance of doubt the family consultant, Mr F, be and is hereby authorized to have reference to:-
(a) all documents filed in these proceedings;
(b) any documents produced on subpoenae and released for inspection by all parties;
(c) any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;
(d) any documents or things referred to in this Order.
8. The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.
9. Not less than 14 days prior to the commencement of the final hearing, the parties determine what, if any, rulings are required as to the admissibility of evidence and notify my Associate – email …@familycourt.gov.au – that the matter requires Court time AND IT IS DIRECTED that such strike out application may be listed before me for up to 2 days if practicable prior to the commencement of the final defended hearing, but otherwise the objections will be dealt with at the beginning of the final hearing.
10. Any party against whom a ruling is made striking part of that party’s affidavit or that of their witness, must file and serve a copy of the affidavit(s) from which the inadmissible has been redacted and do so by not later than 9:00 a.m. on the next working day after the agreement to strike out or the strike out ruling.
11. Any solicitor / practitioner who prepares an affidavit from which portions are ruled inadmissible and are struck out may be precluded from charging for that part of the affidavit which is struck out in addition to being liable for costs incurred on any strike out application (or a proportionate part thereof). Practitioners must be ready to deal with issues arising from material being struck out of evidence including issues of conflict between the interests of the solicitor and the interests of the client.
12. If a legal practitioner is precluded from charging costs for preparation of material which is struck out, he/she particularise for his/her client the amount of money by which the client’s legal costs will be reduced as a consequence of the material being held to be inadmissible.
13. Each of the father, MR DONALDS, the mother, MS DONALDS, and the maternal grandmother, MS GREGG, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the children X, male, born … 2019 and Y, male, born … 2021 from the Commonwealth of Australia.
14. X, male, born … 2019 and Y, male, born … 2021 be and are hereby restrained from leaving the Commonwealth of Australia.
15. IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.
16. A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia
17. By not later than 20 August 2021, each party file and serve:-
(a) a case outline document; and
(b) a list of documents to relied upon by that party –
and send same to my Associate by email – …@familycourt.gov.au.
19. The case outline document summarise that party’s parenting case including, but not necessarily limited to, the following issues:-
(a) a) Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
(b) b) Whether it is the best interests of X, male, born … 2019 and Y, male, born … 2021 to spend equal time with each parent and, if not, why not; and
(c) Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and
(d) What parenting orders are sought by that party;
(e) Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
20. By not later than 20 August 2021 the independent children’s lawyer provide to each other party to the proceedings and by email to my Associate:-
(a) a chronology of relevant events;
(b) a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;
(c) a list of documents upon which the independent children’s lawyer intends to rely.
and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
21. The father and the mother each be in a position on the first day of the defended hearing to specify what orders he/she will seek if he or she does not succeed with his/her primary position as to the state in which the children will live.
22. The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties and the solicitor for the applicant include their documents first.
23. The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 16 August 2021 and the independent children’s lawyer notify my Associate,– email - …@familycourt.gov.au - as soon as possible of the date and time of the conference, once appointed.
24. IT IS REQUESTED that the family consultant, Mr F, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 23 of this Order.
25. Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-
(a) any family report;
(b) any document referred to in this Order;
(c) any document filed in these proceedings; and
(d) any other report by a professional in this matter that the independent children’s lawyer considers is necessary.
25. In the event that this matter resolves prior to the hearing date, the solicitors for the parties and the independent children’s lawyer notify my Associate promptly.
AND IT IS NOTED BY THE COURT:
A. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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