Firmin and Curtin (No 3)

[2019] FamCA 726

FAMILY COURT OF AUSTRALIA

FIRMIN & CURTIN (NO. 3) [2019] FamCA 726

FAMILY LAW – PRACTICE AND PROCEDURE – Section 102NA prohibition on cross-examination.

Family Law Act 1975 (Cth)

APPLICANT: Mr Firmin

RESPONDENT: Ms Curtin

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 7934 of 2016

DATE DELIVERED: 7 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Family Law

Orders

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. In the event that the mother makes application to Victoria Legal Aid for assistance under the Commonwealth Family Violence and Cross- Examination of Parties Scheme (‘the scheme”) for the appointment of a lawyer by 12.00 noon on 15 October 2019 and such application has not been granted and/or the mother will still be not legally represented on 28 October 2019, the trial on 28 October 2019 be and is hereby vacated. For the avoidance of doubt, if the mother fails or neglects to make an application to the scheme by the time specified the trial will proceed on 28 October 2019 but the mother will have no entitlement or opportunity whatsoever to cross-examine the father in the proceedings although she will herself be cross-examined by counsel appearing on behalf of the father.

2. This matter be tentatively listed for final hearing to commence on 2 March 2020 at 10.00 am estimated to take 5 days NOTING THAT the tentative nature of the listing is referrable to the uncertainty of the matter proceeding on 28 October 2019.

IT IS REQUESTED:

1. That the Secretary of the Department of Human Services of the State of Victoria intervene in these proceedings pursuant to Section 91B of the Family Law Act 1975.

IT IS DIRECTED:

1. That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties to the proceedings and accompany the notification to the Department of Human Services.

2. Once the hearing dates are more certain, the independent children’s lawyer write to my associate – email… – requesting that directions for trial be made in Chambers.

3. That the literature published by the Court, being:

   a)     “Family Violence Information Sheet”; and

   b)     “Family Violence – Personal Cross-examination Ban”:

   be annexed to this Order.

IT IS FURTHER ORDERED THAT:

1. I reserve liberty to apply for further urgent interim parenting orders based on alleged risk to the child X born …2012.

2. Any subpoenas returnable in anticipation of the hearing on 28 October 2019 continue to be taken and held by the Subpoena Section of this Registry of the Court and be released for inspection and copying according to the Rules.

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  Firmin & Curtin 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 MELBOURNE

FILE NUMBER: MLC 7934  of 2016

Mr Firmin

Applicant

And

Ms Curtin

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me by way of a mention because the mother has ceased to be represented in parenting proceedings, which are coming on for final hearing on 28 October 2019.  They are, to say the least, complex parenting proceedings about X who is now seven years old.

2. X is currently residing in a shared care arrangement, spending five out of 14 days in the father’s household and nine out of 14 days in the mother’s household.  The mother’s household has been characterised by what I would conservatively describe as disruption, lack of organisation and a frenetic family life.  The mother has the care of two older boys, Y and Z, twins also born in 2005.  Both Y and Z have special needs.  There has been repeated involvement by the Department of Health and Human Services.

3. The parenting arrangement that now pertains to X has come about after a series of interim hearings and aborted final hearings, some brought about by alleged material nondisclosures by the mother of matters very relevant to the case. 

4. Significantly, some family violence amendments to the Family Law Act 1975 (Cth) (“the Act”) which came into force in March 2019 are now operative. In particular s 102NA(2) of the Act, applies to cross-examination in proceedings occurring after 11 September 2019. It is common ground that this is a case to which the mandatory ban would apply because there is a final Intervention Order between the mother and the father and the mother is unrepresented. The mother makes serious allegations of family violence. There are counter-allegations of family violence and neglect. The mother informed the Court that she did not know about the amendments to the Act about cross examination or that she would be required to attend Court today because her step father handles all of her correspondence and he has been absent on holidays.

5. The matter has been set down for trial for some time.  The father’s legal team is geared up for a hearing to commence on 28 October.  Unfortunately, that date will have to be vacated.  Mr Sweeney, of counsel for the father, had intended to ask that the Court impose upon Legal Aid a request to deal with the matter urgently.  I am not able to oblige.  In the last three weeks, the Court has on two occasions asked for indulgences of this nature from Victoria Legal Aid and neither special requests have been able to be met.  I accept the explanation then given that practitioners could not be located, found or retained to act for the people in question. 

6. It is most unfortunate that this trial date is vacated.  However, it would be more unfortunate if more money was spent preparing for a date on 28 October, no hearing eventuate and a greater amount of costs to be thrown away. 

7. The trial will need to be rescheduled.

8. The mother will be able to avail herself of an opportunity to apply for assistance from Victoria Legal Aid and she will in due course be appointed a lawyer.  That lawyer can then cross-examine the father in the proceedings. 

9. Mr Sweeney has brought something to my attention, which is concerning and relates to the speed with which the matter should come back on for final hearing. 

10. Mr Sweeney is instructed in general terms, not specifically, that in late August 2019, the paternal grandmother of X, who is Ms L (telephone number …), was present when there was either an incident or a comment passed by X which gave Ms L the impression that X had acted in an inappropriately sexualised or untoward way with his younger sister, W.  W is the child of the father and his new wife.

11. The maternal grandmother discussed the matter with the father’s solicitors, who in turn discussed the matter with the father.  Whilst a letter was contemplated to be sent from the father’s lawyers to the mother’s practitioners to ask for some counselling for X, no correspondence was sent.  However, the paternal grandmother’s concerns were matters that were contemporaneously raised with a solicitor and documented by the solicitor.

12. Now in the course of preparing for the final hearing, the father’s legal representatives have caused documents to be produced on subpoena by the school that Y attends, being P School in Suburb N.  In a file so produced is a file note dated Saturday 11 May 2019 that relates to the preceding week in Term 1 2019.  It is a file note by a Ms M.  It records some events during an English lesson, which appears to have been on Thursday of that week, which would make it 9 May 2019. The file note reads:

    V and [Y] made several sexual references during English.  They were given a couple of reminders and given boxed time.  [Y]’s sentence during vocabulary test was: “I was caught touching my little brother.”

13. It is an unusual turn of phrase for the 14 year old to use in class.  It is not known whether the school made any report to the Department of Health and Human Services. 

14. There is a common theme through the experience of the paternal grandmother and the note from X’s teacher.  

15. I do not know when this matter will be able to be re-listed.  I feel it is incumbent upon the Court to make a notification to refer the matter back to DHHS.  This is so there can be some investigation of X’s circumstances and also Y’s circumstances.

    RECORDED: NOT TRANSCRIBED

16. The mother is not at Court today and was not aware of the amendments which impact on her because, she says, she has delegated all correspondence in this case to her stepfather and he is holidaying overseas. 

17. In view of the mother’s lack of attention to her own proceedings, I propose to put a limit on the time within which the mother can make an application to Victoria Legal Aid to take advantage of the Scheme for representation, where the personal cross-examination ban applies.  That will be seven days from today.  That is, unless the mother has made an application to Victoria Legal Aid within that time, the trial will proceed on 28 October 2019 as a matter where the mother cannot cross-examine the father.

18. This restriction on the time in which the mother can apply under the Scheme is designed to lessen the inconvenience for the other parties and the lack of access to justice for the child.  The father should not be waiting around to see whether the mother does in fact make the application to Victoria Legal Aid.  Moreover, I want to avoid a situation where I vacate the hearing on 28 October 2019 only to find that the mother made no application and that ultimately she does not have either private legal representation or representation under the Scheme offered by Victoria Legal Aid.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 October 2019.

Associate: 

Date:  11 October 2019