FERREIRA & FERREIRA

[2019] FamCA 317

FAMILY COURT OF AUSTRALIA

FERREIRA & FERREIRA [2019] FamCA 317

FAMILY LAW – PRACTICE AND PROCEDURE – Section 102NA prohibition on cross-examination – Discretion to apply provisions – Potential considerations.

Family Law Act 1975 (Cth) s 102NA

APPLICANT: Mr Ferreira

RESPONDENT: Ms Ferreira

INDEPENDENT CHILDREN’S LAWYER: Bowral Legal

FILE NUMBER: LEC 538 of 2015

DATE DELIVERED: 20 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Self-Representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Campbell

Orders

1. The matter is set down for final hearing for a period of five days commencing at 10am on 11 November 2019.

2. The requirements of s 102NA(2) are to apply to the cross-examination in these proceedings. 

3. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the children of having a meaningful relationship with both of the children’s parents;

   (b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the children may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

   (c)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

   (i)Either of the children’s parents;

   (ii)Any other child or other person (including a grandparent or other relative of the children including a sibling or step-sibling) with whom the children have been living; and

   Including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

   (d)       The capacity of:

   (i)Each of the children’s parents; and

   (ii)Any other person (including any grandparent or other relative of the children)

   to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Family Consultant thinks are relevant;

   (f)       If the children are an Aboriginal or Torres Strait Islander children:

   (i)The children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)The likely impact any proposed parenting order will have on that right:

   (g)The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;

   (h)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children;

   (i)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

4. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

5. The matter is otherwise adjourned to 2pm on 19 August 2019 for the giving of trial directions to prepare the matter for hearing on 11 November 2019.

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 Ferreira & Ferreira 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 CANBERRA

FILE NUMBER: LEC 538 of 2015

Mr Ferreira

Applicant

And

Ms Ferreira

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter that is due to be set down for final hearing and time is available for the Court to deal with the matter to finality commencing on 11 November 2019 for the estimated five day period that it would take to deal with the balance of the issues. 

2. This is also a matter in which there has been a previous judgment, by reason of the proceedings were split in two, so that an issue of sexual risk to the children could be dealt with.  That has been dealt with and in general terms determined that the children are not at an unacceptable risk of sexual abuse by the father.

3. That previous judgment did not deal with all issues of violence alleged during the relationship.  There are a number of unresolved issues including one of sexual assault upon the mother.  The mother has also advised that although it has now expired she has previously had a Family Violence Order in place against the father for a period of two years.  On the assumption that the mandatory conditions for the application of s 102NA do not apply (without determining the issue to finality) being that although there has been a Family Violence Order in place the provision may require a current Family Violence Order, in any event it is appropriate in this case that an order be made that the requirements of s 102NA(2) be applied to this case.

4. That order is appropriate because there has previously been a Family Violence Order in place for a period of two years and because there is a serious allegation of family violence, which will require resolution at the proceedings.  The nature of that particular allegation of family violence is such that to require the mother, as an unrepresented litigant, to cross-examine the father as to the circumstances of such, carries with it the risk of an undermining of the proceedings. 

5. While such a determination is not necessary on the face of the legislation because the discretion given to the Court to apply the provision is so broad, and is not bounded by specific considerations, it certainly seems to be a matter that is relevant to take into account.  It is difficult to foresee that the mother would be able to effectively cross-examine the father in the face of that circumstance. 

6. Accordingly, I determine that it is appropriate that the requirements of s 102NA(2) apply to the cross-examination in this matter and that an order be made accordingly. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 May 2019.

Associate

Date:  21 May 2019