Garwood & Shipton (No 4)
[2023] FedCFamC1F 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 4) [2023] FedCFamC1F 104
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 16 February 2023 Catchwords: FAMILY LAW – Ex tempore reasons – Where the final hearing in the matter is currently part heard – Where the respondent no longer has legal representation – Where the applicant invites the court to order the application of the provisions of s 102NA(2) to the cross examination of the parties for the balance of the trial – Where such an order is made Legislation: Family Law Act 1975 (Cth) ss, 68B, 102NA(1), 114 Cases cited: Garwood & Shipton (No 3) [2023] FedCFamC1F 2 Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 16 February 2023 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Stanley & Co. Lawyers For the Respondent: Litigant in person ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
order made by:
KARI J
DATE OF ORDER:
16 FEBRUARY 2023
UPON NOTING:
A.That further information about the Commonwealth Family Violence and Cross Examination of Parties Scheme can be found at Part 4 of the attached Violence Information Sheet.
THE COURT ORDERS BY CONSENT THAT:
1.That by 4.00 pm on 17 February 2023 the Mother shall file and serve an updated Notice of Address for Service with the same to identify the single email address for communication with her in these proceedings.
2.That no later than 10.00 am on 17 February 2023 the Father’s solicitor do provide to the Mother the draft letter of instruction to Ms B for the Mother’s signature in accordance with paragraph 3 herein.
3.That the Mother sign and return to the Father’s solicitors by 4.00 pm on 17 February 2023 the joint letter of instruction to Ms B.
4.That forthwith upon receipt of the signed letter of instruction to Ms B in accordance with paragraph 3 herein the Father’s solicitors shall co-sign and provide the same to Ms B.
5.That no later than 4.00pm on 24 February 2023 the Mother do file and serve an Updated Financial Statement.
THE COURT FURTHER ORDERS:
Trial Planning
6.That the requirements of s 102NA (2) of the Family Law Act shall apply in these proceedings to any cross examination by the Father of the Mother, and of the Mother by the Father (and not any other witness) in these proceedings.
7.That the court shall forthwith provide a copy of this order to the Legal Services Commission to facilitate the Mother obtaining funding pursuant to the Commonwealth Family Violence and Cross Examination of Parties Scheme 8.
8.That no later than 4.00 pm on 13 April 2023 each the Mother and the Father shall be at liberty to file and serve one further affidavit only, limited to 5 pages of any further evidence in chief upon which they intend to rely for trial purposes with such affidavit to cover the period from 28 February 2023 until time of the filing of the affidavit.
9.That no later than 4.00 pm on 20 February 2023 the Father’s solicitors do file and serve a copy of the Trial Plan finalised during the course of today’s hearing.
10.That in the event that either of the parties wish to issue a subpoena for any witness to give evidence in these proceedings (as identified in the agreed Trial Plan) the same shall be issued by each of them no later than 4.00 pm on 10 March 2023.
11.The parties are restrained and an injunction is granted restraining each of them from issuing any subpoena save as provided for in these orders or in accordance with the witness list in the finalised Trial Plan without leave of the court.
12.That no later than 4.00pm on 24 February 2023 the Mother do file and serve an affidavit particularising her treating health and/or allied health practitioners together with those of the child X and in addition that the Mother attach annexed to any such affidavit all documents in relation to any application for NDIS funding for the child X.
13.That the Father be given leave to issue a subpoena for the production of documents from each:
(a)Ms L;
(b)Ms SS;
(c)Ms TT;
(d)Ms EE.
Application
14.That the Application in Proceeding filed on 15 February 2023 be listed for Interim Hearing on 28 February 2023 at 2.15pm (half day allowed).
15.That the Mother file and serve a Response to the said Application in a Proceeding together with any Affidavit upon which she intends to rely, with the same to include an affidavit from each Ms BB and Ms CC no later than 4.00pm on 24 February 2023.
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).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
This matter comes before me today in, frankly, somewhat difficult circumstances. The final hearing in the proceedings is part heard before the Court with respect to the threshold question as to whether a de facto relationship existed between the parties and also parenting matters in relation to the parties' child, X.
The matter already has quite a long trajectory and history before the Court.
The final hearing commenced and the Court has heard approximately two weeks of trial in September of last year. The matter is part heard with the trial to resume on 17 April 2023, with a further three sitting weeks allocated.
At the present moment, the mother has given oral evidence, and she has been subjected to lengthy cross-examination. It is intended that when the trial resumes the mother will give some further evidence. She is to file two affidavits between now and the trial resuming setting out any further evidence-in-chief and there is to be further cross-examination of her.
At the present moment, the mother is the only witness who has given evidence in these proceedings. Her case has not yet concluded and there are a number of witnesses that she is yet to call including both lay and professional witnesses.
The father, equally, intends to give evidence in these proceedings and, in addition, he intends to call a number of witnesses, both lay and professional.
The matter came before the Court yesterday and was adjourned to today in circumstances where earlier this week the Court was advised, firstly, directly by the mother and then confirmed by her then legal representatives that the mother is to no longer be represented by the solicitors whom had represented her for the duration of the first tranche of the trial. Namely, UU Lawyers together with counsel, Ms VV and junior counsel Ms WW.
The Court understands from matters that the mother has raised today that the cessation of her legal representation is in circumstances where the mother is unable to meet outstanding legal fees and anticipated legal fees for the continuation of trial. The Court today in discussions with the mother has encouraged the mother to reconsider her position and obtain legal representation if she is in a position to do so.
Be that as it may, as we presently stand the mother's position is that she is unable to continue to afford legal representation. On what the Court currently knows about the mother's financial circumstances not only from documents she has filed in these proceedings including a financial statement but also as a result of matters that are touched upon in the judgment I delivered on 11 January 2023 (Garwood & Shipton (No 3) [2023] FedCFamC1F 2), the Court at some level has a general understanding that the mother is unlikely to be the recipient of a grant of legal aid funding. That is in circumstances where the mother owns a freehold property and she is the owner of a business which runs a number of locations.
The circumstances that we now find ourselves in where the mother is now self-represented is that the father has now made an application that s 102NA(2) of the Family Law Act 1975 (Cth) applies. It is clear, on any view of the matter, that the mandatory provisions prescribed in s 102NA(1)(c), subsection (i), (ii) and (iii) do not apply in the present circumstances.
There are no convictions or charges of offences involving family violence or a threat of violence between these parties. There is no family violence intervention order applying to these parties. Equally, there is no injunction made in these proceedings pursuant to s 68B or s 114 of the Act for the personal protection of either of these parties.
Be that as it may, the father's position is that this is a matter where the Court should exercise discretion pursuant to s 102NA(1)(c)(iv) such that the personal ban on cross-examination between the parties be applied.
During the hearing today, I have had the benefit of a draft trial plan that has been prepared between the father's legal representatives and the mother's former legal representatives. I have had lengthy discussions during the course of the hearing today as to that draft trial plan and, ultimately, with some amendments made it has been adopted. In due course, I will make orders for the father's solicitors to file a finalised trial plan in accordance with the discussions that have been had today.
From that document I understand not only are there a further three weeks within which the matter is to be heard, but, understandably, I am also cognisant that there is not only to be cross-examination of the mother when the trial resumes but, importantly, the mother will have the opportunity to interrogate the father's case and cross-examine the father.
The application, as I say, that has now been made on behalf of the father is that s 102NA(2) should apply and the Court should exercise discretion to prevent the mother from personally cross-examining the father when the trial resumes.
If I was to make the order, which acts as a personal ban on cross-examination by the mother of the father, then that ban, shall apply equally to any cross-examination of the father by the mother. However, at this juncture that is not in issue because the father is represented and he is likely to continue to be represented for the duration of the trial.
Be that as it may, I am being asked to consider whether the ban should apply to these proceedings with respect to the cross-examination between the parties personally and not any of the additional witnesses, as envisaged by s102NA(2).
From the father's perspective the application is grounded in a number of matters. Principal amongst them is an allegation that the mother is the victim of a serious sexual offence perpetrated by the father. This allegation is denied by the father.
In addition, the mother makes a range of additional allegations which are equally denied by the father. Those allegations include that she was subjected to coercive and controlling behaviour by the father. That she is the victim of financial control and abuse by the father including allegations that when he was employed by her he perpetrated theft of a significant sum of money from her and/or her business.
Those are matters which are serious. Even if I was to ignore a range of the allegations, the most serious of the allegations is the allegation of a sexual offence. The father's counsel identifies that this allegation is not only a serious allegation in the general sense but it is more specifically a serious allegation involving violence and/or physical and sexual violence as between the parties.
Regardless of whether that allegation is denied or not, the allegation is a significant feature of these proceedings. It is a feature of these proceedings because, in part, the mother raises that topic in relation to her assertion that the parties were not in a de facto relationship, amongst other things.
Having given consideration to the matter, in my view, I accept the submissions that have been made on behalf of the father and I consider that the circumstances and the allegations that have been made in these proceedings are such that warrant the Court to exercise discretion and apply the ban on cross-examination personally between the parties to the litigation.
I, accordingly, in due course will make an order that the ban shall apply to the cross-examination by the mother of the father and/or the father of the mother in these proceedings, but not otherwise.
It will, ultimately, be a matter for the Legal Services Commission as to how they administer that order, in circumstances which will undoubtedly be difficult given that the trial is part heard. Ultimately, however, that is not a matter that I need to concern myself with today. All I need to be satisfied with is that it is appropriate to apply the ban and I consider it appropriate that I do so.
In making that decision I am also cognisant that the mother in reply to the application has indicated that she does not wish to cross-examine the father personally and to that end she supports the making of the order.
That has some consequences for the mother. Once the order has been made she will be required to liaise with the Legal Services Commission to obtain the grant to funding. If she does not do so, she is on notice that the trial will proceed as scheduled and she will not be permitted to personally cross-examine the father and vice versa if the father becomes unrepresented.
That does not, however, mean that the mother will not be able to cross-examine any of the other witnesses in these proceedings. The ban will only apply to the cross-examination of the parties personally by each or other of them.
So for those reasons I consider it appropriate to make an order as I have been invited to make today.
In addition, I have made orders by consent today but I intend to make some additional orders to keep the matter on track so that the trial is able to proceed as scheduled.
I, additionally, am cognisant that the father has filed an application in a proceeding sealed on 15 February 2023. That application has been filed in circumstances where I am aware that the orders that I made on 11 January 2023 for time spending between the father and X are not being complied with. The father's application has at its focus, proposals to assist and ensure compliance with the orders that I made earlier this year.
Given that the application was only filed recently, the mother has yet to file any responding documents and I intend to make orders providing for her to do so.
A significant feature of the decision that I made earlier this year in January and the reasons that I gave was the participation of two support persons, as they are described at the mother's end. Namely, Ms BB and Ms CC.
Each of those persons were ordered by me to facilitate handover of X for the purposes of the father's time spending. While my orders are self-explanatory that handover was to be conducted with the assistance of a professional Ms U together with the mother's support persons.
It is not lost on me that when I made those orders a significant criticism that had been made at the father's end was that in advance of that hearing the mother had not asked her support people to provide affidavit material as to their intentions and their willingness to participate and assist the mother. That is something that I commented upon in my reasons of 11 January 2023.
The mother has not applied at this stage to vary the orders that I made and they are not the subject of appeal. Be that as it may, I am aware that both Ms BB and Ms CC have indicated it seems to the mother, who has conveyed the same to the father that they are not willing to assist the mother to comply with the orders that I made.
The mother has indicated today in response to it having been raised by the father's counsel, that she intends to obtain an affidavit from each Ms BB and Ms CC. Indeed, she indicated that Ms BB has already prepared and sworn an affidavit with the assistance of her previous solicitors.
The mother has indicated today that she intends to also obtain an affidavit from Ms CC. To that end it is with the mother's consent that in the process of making orders for the filing of responding documents to enable me to hear the father's Application in a Case sealed on 15 February 2023, that I also intend to make orders for the mother to file affidavits from each Ms BB and Ms CC.
Note: These reasons have been corrected from the transcript. Grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 24 February 2023