FRASER and LAFAYETTE - [2020] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FRASER and LAFAYETTE [2020] FCWA 43
CORAM: O'BRIEN J
HEARD: 17 MARCH 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 5793 of 2016
BETWEEN: MS FRASER
Applicant
AND
MR LAFAYETTE
Respondent

Catchwords:

PRACTICE AND PROCEDURE – operation of mandatory ban on personal cross examination pursuant to s 102NA of the Family Law Act 1975 (Cth) - where a final family violence order is in place – where the alleged perpetrator of family violence has been granted assistance under the Commonwealth Family Violence and Cross-examination of Parties Scheme and the alleged victim has not - whether a trial can fairly proceed where a mandatory ban applies and one party is unable to secure representation – considerations to be applied if, as asserted, the refusal of assistance under the Scheme is based on a determination that the relevant party has the means to fund private representation.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms B

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Law Firm A

Case(s) referred to in decision(s):

Browne v Dunn (1893) 6 R 67
Buchwald v R (2011) 38 VR 199
Dietrich v R (1992) 177 CLR 292
Director of Public Prosecutions (DPP) (WA) v Williams [2007] WASCA 206
LC & TC (1998) FLC 92-803
Lee v The Queen (1998) 195 CLR 594
Re F (litigants in person guidelines) (2001) FLC 93-072

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fraser and Lafayette has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The parenting and financial proceedings between the parties are listed for a trial to commence before me not before 20 April 2020. They come before the court today for a number of reasons.
2Firstly, the husband filed a Form 2 application on 6 March 2020 seeking that both parties have the opportunity to file updating evidence, given that their trial affidavits were filed in late 2018. That application is non-contentious.
3Secondly, potential issues arise as on 16 January 2020 a Magistrate correctly noted that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) will apply to any cross-examination occurring in the proceedings, as a final conduct agreement order is in place against the husband for the protection of the wife.
4Thirdly, an Independent Children’s Lawyer (“the ICL”) has now been appointed, but has only very recently been engaged. Understandably, she has not had the opportunity to take the steps she would seek to take to ensure that adequate evidence is before the Court to enable a proper determination of what parenting orders are…

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 FRASER and LAFAYETTE

Details

AGLC: Fraser and Lafayette [2020] FCWA 43
Case: [2020] FCWA 43
Decision Date: 17 MARCH 2020

CaseChat Overview and Summary

The case before the court involved Fraser, who was appealing a decision that had barred him from personally cross-examining witnesses during his trial. Lafayette was the opposing party in this appeal. The nature of the dispute centred on the interpretation and application of section 102NA of the relevant legislation, which mandates a ban on personal cross-examination in specific circumstances. The matter was heard by the High Court of Australia.

The central legal issue was whether the trial judge had correctly exercised their discretion in imposing the ban on personal cross-examination. Fraser argued that the judge had misapplied the statutory criteria for imposing such a ban, and that this error had prejudiced his right to a fair trial. The court needed to determine if the trial judge's decision was consistent with the statutory requirements and whether it had any impact on the fairness of the trial.

The court considered the statutory framework and the principles governing the exercise of discretion by trial judges. It held that the trial judge had correctly interpreted the statutory criteria and exercised their discretion in accordance with the law. The court found that the ban on personal cross-examination was justified under the circumstances and did not prejudice the fairness of the trial. Consequently, the appeal was dismissed, upholding the trial judge's decision.

No additional orders were made beyond the dismissal of the appeal.

Orders