Ellis & Deacon - [2022] FedCFamC2F 306

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellis & Deacon [2022] FedCFamC2F 306

File number: AYC 238 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 18 March 2022

Catchwords: FAMILY LAW – section 102NA – whether section 102 applies – personal protection injunction – non-denigration order is an order for personal protection – orders made.

Legislation: Family Law Act 1975 (Cth) s 102NA.

Cases cited:
Middleton & Redmond [2021] FCCA 316

Re F: Litigants in Person Guidelines (2001) FLC ¶93 072

Stopford Malloy & Malloy (No.3) [2021] FamCA 284

Division: Division 2 Family Law

Number of paragraphs: 21

Date of hearing: 6 December 2021

Place: Melbourne (in Chambers)

Counsel for the Applicant: Ms S Mariole

Solicitor for the Applicant: Coombe Lawyers

Solicitor for the Respondent: No solicitor on the record
ORDERS

AYC 238 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ELLIS

Applicant

AND:
MS DEACON

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

18 MARCH 2022

THE COURT ORDERS THAT:
1.Order 29 of the orders of 6 December 2021 be and is discharged.
2.It is declared that pursuant to section 102NA(1) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Mother, Ms Deacon under the cross-examination scheme.
3.Pursuant to order 2 hereof, the Respondent Mother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.

AND THE COURT NOTES THAT:
A.The relevant application referred to in order 3 hereof is available to the parties at by the time order 29 of 6 December 2021 was discharged no request as contemplated had been made to Victoria Legal Aid.
C.The matter is listed for final hearing in the Albury Circuit sittings of this court in the week commencing 11 July 2022.

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 a pseudonym Ellis & Deacon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

This decision concerns whether I must prohibit the respondent mother Ms Deacon (‘the Mother’) from cross-examining the applicant father…

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 Ellis & Deacon

Details

AGLC: Ellis & Deacon [2022] FedCFamC2F 306
Case: [2022] FedCFamC2F 306
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr. Ellis (the Father) seeking orders concerning the living arrangements for his child, X, with Ms. Deacon (the Mother). The primary legal issue the court had to decide was whether section 102NA of the Family Law Act 1975 (Cth) applied to prohibit the Mother from personally cross-examining the Father in the proceedings. This section is concerned with the protection of parties in family law proceedings from personal cross-examination when there is an allegation of family violence.

The court found that the Mother intended to cross-examine the Father, and there was an allegation of family violence. The court also found that the non-denigration order made in the proceedings qualified as an injunction for the personal protection of a party under section 102NA(1)(c)(iv). Therefore, the requirements of section 102NA(2) applied, prohibiting the Mother from personally cross-examining the Father and requiring that any cross-examination be conducted by a legal practitioner at public expense.

The court discharged an earlier order seeking submissions from Victoria Legal Aid on the meaning of "personal protection" and whether the non-denigration order qualified as an injunction for personal protection. This was unnecessary in light of the decision in Stopford Malloy & Malloy, which had already determined this point. The court made an order prohibiting the Mother from personally cross-examining the Father and requested Victoria Legal Aid appoint a lawyer for the Mother at the final hearing.

In summary, the court found that the provisions of section 102NA applied in this case due to the allegation of family violence and the non-denigration order made. This resulted in an order prohibiting the Mother from personally cross-examining the Father and requiring Victoria Legal Aid to fund legal representation for the Mother at the final hearing.

Orders