Hurley & Melton (No 2) - [2020] FamCA 917

FAMILY COURT OF AUSTRALIA

HURLEY & MELTON (NO. 2)

[2020] FamCA 917

FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of section 102NA(2) of the Act ordered to apply.

Family Law Act 1975 (Cth)

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APPLICANT:

Ms Hurley

RESPONDENT:

Mr Melton

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

503

2013

DATE DELIVERED:

22 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 October 2020

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan from Legal Aid Queensland

Orders

IT IS ORDERED THAT

Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.

IT IS NOTED THAT

A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination in the proceedings, the Court has today advised the parties:
(i)that pursuant to those requirements, neither party may cross-examine the other party personally; and
(ii)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party; and
(iii)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
(iv)that they are able to apply to that Scheme for the provision of a lawyer by completing an application form available by accessing ...; and
(v)that a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.

AND IT IS FURTHER NOTED THAT

B.The Court respectfully requests that Legal Aid Queensland accord any Application submitted by each parent for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the matter is listed for final hearing for three (3) days commencing on 2 December 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurley & Melton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02

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 Hurley & Melton (No 2)

Details

AGLC: Hurley & Melton (No 2) [2020] FamCA 917
Case: [2020] FamCA 917
Decision Date: 22 October 2020

CaseChat Overview and Summary

In *Hurley & Melton (No 2)*, Hogan J of the Family Court of Australia considered an application concerning the cross-examination of parties in family law proceedings. The specific dispute related to the application of certain procedural requirements to this cross-examination.

The central legal issue before the court was whether the requirements of section 102NA(2) of the *Family Law Act 1975* (Cth) should be applied to the cross-examination of the parties involved in the proceedings. This section of the Act pertains to the conduct of cross-examinations in family law matters.

Hogan J determined that the requirements of section 102NA(2) were to apply to the cross-examination of each party. This decision was made pursuant to section 102NA(1)(c)(iv) of the *Family Law Act 1975* (Cth), indicating a specific power exercised by the court to impose these requirements. The court's reasoning and the precise factors leading to this exercise of discretion are not detailed in the provided text, beyond the invocation of the relevant statutory provisions.

Consequently, the court ordered that the requirements of section 102NA(2) of the *Family Law Act 1975* (Cth) were to apply to the cross-examination of each of the parties in these proceedings.

Orders

Orders of the court

IT IS ORDERED THAT

Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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