Fujiwara & Suzukaze - [2022] FedCFamC1F 104

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fujiwara & Suzukaze [2022] FedCFamC1F 104

File number(s): BRC 6591 of 2021

Judgment of: CAREW J

Date of judgment: 25 February 2022

Catchwords: FAMILY LAW – CHILDREN – PROCEDURE AND EVIDENCE – Where the Independent Children’s Lawyer sought a s 102NA discretionary banning Order on personal cross-examination between the parties – Where the Court considers making an Order to ban personal cross-examination of parties – Where there are allegations of family violence – Where there is a likely power imbalance between the parties – Where an order banning personal cross-examination is made

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Hurley and Melton (No 2) (2020) 61 FamLR 405

Lazar & Haines [2022] FedCFamC1F 35

Number of paragraphs: 26

Date of last submission/s: 25 February 2022

Date of hearing: 25 February 2022

Place: Brisbane

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Self-represented

Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland
ORDER

BRC 6591 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FUJIWARA
Applicant

AND:
MR SUZUKAZE

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

25 FEBRUARY 2022

IT IS ORDERED THAT:
1.Pursuant to the discretionary provisions of s 102NA(1)(b) and (c)(iv) and s 102NA(2) of the Family Law Act 1975 (Cth) both of the following requirements apply to the cross-examination in this case:
(a)The examining party must not cross-examine the witness party personally;
(b)The cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

2.Following these Orders each party must promptly apply to the Legal Aid Queensland Cross-Examination Scheme by email to the CrossExamination.Scheme@legalaid.qld.gov.au and each must promptly submit their completed application to that address.
3.Each party do all things necessary to ensure that their application under the Commonwealth Scheme can be processed without delay and that they cooperate in all respects with any reasonable requests made of them for that purpose.
4.It is requested that Legal Aid Queensland assess each party’s application with priority to ensure that the trial listed for 4 days commencing 30 March 2022 can proceed.
5.The registrar of the Federal Circuit and Family Court of Australia (Division 1) forthwith provide a copy of this Order and the ‘Banning Notice’ to the Legal Aid Queensland Cross-Examination Scheme.
6.The mother’s Application in a Proceeding filed 24 February 2022 be adjourned for hearing to 7 March 2022 at 9.30 am at which time all parties have leave to appear via Microsoft Teams Video.
7.The mother file and serve a Statement of Financial Circumstances on or before 4.00 pm on 1 March 2022 and provide copies of financial documents to support her claim that her financial circumstances are dire.
8.The father file and serve a Response to the mother’s Application in a Proceeding, an affidavit in support and a Statement of Financial Circumstances on or before 4.00 pm on 3 March 2022 and provide copies of financial documents to support his stated…

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.

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Details

Case: [2022] FedCFamC1F 104
Decision Date

CaseChat Overview and Summary

In the case of Fujiwara and Suzukaze, the Federal Circuit and Family Court of Australia (Division 1) considered an application for an order to prohibit personal cross-examination between the parties in family law proceedings concerning their young son. The Independent Children's Lawyer ("ICL") sought the order under s 102NA of the Family Law Act 1975 (Cth) ("the Act"). The substantive proceedings involved a dispute about the welfare and care of the parties' son, who had experienced considerable instability since his birth in 2020. The father had withheld the child from the mother in May 2021, and a recovery order was made three weeks later. The mother relocated to Sydney in June 2021, and the father had limited contact with the child until a recent interim agreement allowed him to spend time with the child each Friday and Saturday.

The legal issues before the Court included whether the Court should exercise its discretion under s 102NA of the Act to prohibit personal cross-examination between the parties. The Court considered various factors, including the allegations of family violence between the parties, the likely consequences of personal cross-examination, and the need for a fair trial for both parties. The Court also considered the mother's application to appear at the trial by electronic means and the associated costs.

In its decision, the Court found that the allegations of family violence, although lacking significant particularity, raised the real prospect of a party being overborne by a process that required personal cross-examination of a potential perpetrator. The Court also noted the assessment of the family consultant that there was likely to be a real power imbalance between the parties. The Court determined that making an order banning personal cross-examination would be appropriate to protect the integrity of the litigation process and to ensure a fair trial for both parties. The Court further ordered that each party must promptly apply to the Legal Aid Queensland Cross-Examination Scheme and cooperate with any reasonable requests made of them for that purpose. The Court also adjourned the mother's application to appear at the trial by electronic means to allow both parties to provide evidence addressing the relevant matters.

The final orders of the Court included a prohibition on personal cross-examination between the parties, requirements for each party to apply to the Legal Aid Queensland Cross-Examination Scheme, and an adjournment of the mother's application to appear at the trial by electronic means.

Orders