Foote & Kala
[2024] FedCFamC1F 55
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Foote & Kala [2024] FedCFamC1F 55
File number(s): MLC 1457 of 2011 Judgment of: BENNETT J Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – PARENTING – Section 102NA application – no appearance by the applicant father – order made in favour of mother – father has liberty to apply Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 9 February 2024 Counsel for the Applicant: No appearance Counsel for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Mr Weston of Perry Weston Lawyers ORDERS
MLC 1457 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KALA
Applicant
AND: MS FOOTE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
9 FEBRUARY 2024
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 applies to any cross-examination occurring in the proceedings on or after 8 February 2024:
And further noting that the parties have been advised by the Court:
(a)that pursuant to those requirements, neither parent may cross-examine the other parent personally;
(b)that pursuant to those requirements, any cross-examination of either parent 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.
THE COURT ORDERS THAT:
1.The requirements of s 102NA (2) of the Family Law Act 1975 will apply to these proceedings.
2.The mother make application to Victoria Legal Aid for funding pursuant to s 102NA (2) for the final hearing of this matter.
3.The literature published by the Court, being Document 4 (Family Violence Information Sheet) be annexed to this Order.
4.My Reasons for decision be transcribed and released to the parties and sent to Victoria Legal Aid for processing of the Section 102NA Application.
5.I reserve liberty to the father to mention this matter before me on notice to other parties this afternoon in the event that the father seeks to vary or set aside this Order or as he may be advised.
AND THE COURT NOTES THAT:
A.The Family Report dated 15 December 2023 of Court Child Expert, Ms N, be sent to Victoria Legal Aid along with a copy of this Order.
B.The final hearing is set down to commence on 18 March 2024 estimated to take five (5) days.
C.Trial directions were made on 18 August 2023 however extended by consent of all parties on 27 January 2024. For the avoidance of doubt, the parties’ materials are to be filed as follows:
(a)The applicant father by not later than 16 February 2024;
(b)The respondent mother by not later than 1 March 2024;
(c)The Independent Children’s Lawyer by not later than 6 March 2024;
(d)The applicant father in reply by not later than 13 March 2024; and
(e)The parties’ Outline of Case Documents by not later than 15 March 2024.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
F.There was no appearance by, or on behalf of, the father this day.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
In this matter, the mother seeks a 102NA order. It is common ground between herself and the Independent Children’s Lawyer that there is an interim intervention order; indeed, I have read that in the material to date.
I make these orders without the father being in court or represented. The matter was brought on for hearing this morning and the parties were notified by email yesterday. The purpose of the hearing was to hear the mother’s application for a section 102NA order. The mother has previously been represented in these proceedings by Q Lawyers, but the mother says they have now withdrawn. The mother is without representation. I have proceeded with the matter in the absence of the father but will give him liberty to vary or set aside my Orders or as he may be advised.
This is a necessitous and troubling case. The child E is nearly 15 years old and at the moment is doing reasonably well at school; however, he is hugely burdened by incessant parental conflict between his parents. Whilst I cannot find at this stage that certain physical conditions which he is suffering, such as vomiting, dizziness, stomach aches and the like are attributable to emotional distress, my strong suspicion is that they are. He desperately needs these proceedings to be over. I am very concerned that the mother’s solicitors have waited until now to withdraw and the mother has waited until now to make a section 102NA order application. This may delay the proceedings.
I understand that Victoria Legal Aid need somewhere between six and 10 weeks to process a section 102NA request.
The final hearing in this matter is just less than six weeks away. I would ask Victoria Legal Aid to prioritise this matter to the extent that it is necessary for there to be a lawyer for the mother for the final hearing. To that end, I will direct that a copy of the last family report which was released 18 December 2023 be sent to Victorian Legal Aid with this Order and my reasons to read as I think gives some insight into the turmoil which the child faces.
It should be noted that on the last year, I heard from Dr P and Ms R, who had each seen E and the family. I was not prepared to act in accordance with their joint recommendation that E’s residence be immediately changed to that of the father. Now we have a further family report of Ms N which seems to me to be internally consistent and much easier to understand from the perspective of the child and what the child is likely to need. The Independent Children’s Lawyer, Mr Weston, has approached the parties and is encouraging settlement negotiations before the final hearing date, and I commend him for that.
Following the hearing the lawyer for the father contacted my Chambers and advised that the father seeks a s102NA order as well. I have made that Order. The upshot is that Victorian Legal Aid now has to find s102NA lawyers in less than six weeks. I sincerely hope they can do so because there is every indication that E is buckling under the weight of conflict generated by his parents.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 9 February 2024
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