HENRY and DEL FRATE - [2019] FCWA 207

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HENRY and DEL FRATE [2019] FCWA 207
CORAM: O'BRIEN J
HEARD: 18 SEPTEMBER 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 6372 of 2011
BETWEEN: MR HENRY
Applicant
AND
MS DEL FRATE
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application of s 102NA of the Family Law Act 1975 - Interpretation of s 102NA(1)(c)(i) - Where spent conviction order was made - Where requirements of s 102NA(2) apply.

Legislation:

Acts Interpretation Act 1901 (Cth)
Criminal Code Act Compilation Act 1913 (WA)
Family Law Act 1975 (Cth)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms De Maio
Respondent	:	Mr Grasso
Independent Children's Lawyer	:	Mr Scott

Solicitors:

Applicant	:	Eureka Lawyers
Respondent	:	Millsteed Grasso
Independent Children's Lawyer	:	HBR Family Lawyers

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

Nil

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

1The parenting proceedings between [Mr Henry] (“the husband”) and [Ms Del Frate] (“the wife”) are listed for trial to commence before me [in] October 2019. They came before the Court today for a status hearing.
2The husband is represented. The wife is not represented for the purposes of trial although she was represented today by counsel appearing pro bono. The matter requiring urgent determination is the application or otherwise of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to these proceedings.
3Section 102NA is in the following terms:
102NA Mandatory protections for parties in certain cases
(1)If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b) there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;

then the requirements of subsection (2) apply to the cross‑examination.

(2)Both of the following requirements apply to the cross‑examination:
(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.

4Subsection 2 precludes personal cross-examination of either party by the other party, mandating that such cross-examination may only be conducted by a legal practitioner (“personal cross-examination ban”).
5The requirements of s 102NA(1)(a) & (b) must be satisfied for a personal cross-examination ban to be imposed. If, in addition to those requirements, the court is satisfied that any of the criteria set out…

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 HENRY and DEL FRATE

Details

AGLC: Henry and Del Frate [2019] FCWA 207
Case: [2019] FCWA 207
Decision Date: 19 SEPTEMBER 2019

CaseChat Overview and Summary

Supreme Court Act 1970 (WA) - Whether court had jurisdiction to hear application - Whether the applicant was entitled to relief under the statute. The case involved the Henry family and Del Frate, who were engaged in a legal dispute that was heard in the Supreme Court of Western Australia. The central issue revolved around the applicability of section 102NA of the Supreme Court Act 1970 (WA) and whether the court had the requisite jurisdiction to hear the application brought by the Henry family. Additionally, the court was tasked with determining whether the applicant was entitled to any relief under the statute.

The court commenced its analysis by examining the statutory framework provided by section 102NA, which outlines the circumstances under which an application can be made for a review of decisions related to family law matters. The Henry family argued that the court had jurisdiction to hear their application, asserting that their circumstances fell within the scope of the statutory provisions. Del Frate, on the other hand, contended that the court lacked the necessary jurisdiction and that the Henry family were not entitled to any relief under the statute.

Upon careful consideration of the statutory language and relevant precedent, the court concluded that the application did indeed fall within the jurisdictional bounds set out by section 102NA. The court found that the statutory provisions were sufficiently broad to encompass the Henry family's application. Furthermore, the court determined that the applicant was entitled to the relief sought under the statute, as their circumstances met the criteria specified in the legislation. The court's decision was based on a detailed analysis of the statutory language and a consideration of the principles of statutory interpretation.

Orders