Donne and Scully

[2019] FamCA 785

FAMILY COURT OF AUSTRALIA

DONNE & SCULLY [2019] FamCA 785

FAMILY LAW – Application of s 102NA of the Family Law Act 1975 (Cth) – Where it is proposed that the father will personally cross-examine the mother at trial – Where there are allegations of family violence – Order for ban on personal cross-examination

Family Law Act 1975 (Cth) s 104NA

APPLICANT: Ms Donne

RESPONDENT: Mr Scully

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 839 of 2016

DATE DELIVERED: 14 August 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 14 August 2019

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Lehmann Featherstone

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Cope Family Law

Orders

1. The requirements of section 102NA(2) of the Family Law Act 1975 (Cth) are to apply to any cross-examination occurring in the proceedings, so as to prohibit personal cross-examination of either party by the other.

2. The time for the filing of the father’s trial material under order 4 of the orders made on 7 February 2019 be extended until Monday 23 September 2019.

NOTATION

A.THE COURT NOTES that the requirements of section 102NA(2) of the Family Law Act 1975 (Cth) 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 Legal Aid Queensland, which administers the said scheme.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donne & Scully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 839 of 2016

MS DONNE

Applicant

And

MR SCULLY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has come before the Court today at the behest of the solicitors for the mother. It arises under section 102NA of the Family Law Act 1975 (Cth) (“the Act”), in that it is proposed, in the trial commencing 4 November 2019, that the father will personally cross-examine the mother in these proceedings. There is an allegation of family violence against him made by the mother. There have been final family violence orders, which expired on 28 May 2019. There is a further hearing of final family violence orders listed for September this year. And, as I say, the trial is listed for 4 November 2019. If there were to be final family violence orders made in September 2019, then the trial would not be able to proceed, given the provisions under s 102NA of the Act.

2. I am satisfied, in those circumstances, that there should be an order applying subsection (2) of section 102NA of the Act to the cross-examination of the mother by the father.

3. The effect of this order will be to potentially enable the father to seek Legal Aid for representation for the purpose of at least cross-examining the mother, and perhaps the entire proceedings.

4. Further, I will amend the trial management orders so as to extend the time for father’s filing of material by two weeks.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 14 August 2019.

Associate:

Date: 14 August 2019