Knight & Knight
[2022] FedCFamC1F 797
Federal Circuit and Family Court of Australia
(DIVISION 1)
Knight & Knight [2022] FedCFamC1F 797
File number(s): WOC 256 of 2019 Judgment of: SCHONELL J Date of judgment: 18 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother made allegations of family violence against the third respondent – Where the third respondent made various outbursts during the mother’s cross-examination – Where the quality of the mother’s evidence may be impacted – Ordered that the mother complete her cross-examination by video link consistent with the principles in s 69ZN of the Family Law Act 1975 (Cth). Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 102NA Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 18 October 2022 Place: Wollongong Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Williamson Isabella Lawyers and Public Notaries The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Hopper Solicitor for the Second Respondent: Inner West Solicitors Pty Ltd The Third Respondent: Litigant in person Counsel for the Intervener: Mr Anderson Solicitor for the Intervener: Crown Solicitor’s Office Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Rowley & Associates ORDERS
WOC 256 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B KNIGHT
Applicant
AND: MS C KNIGHT
First Respondent
MR MARSH
Second Respondent
MR CLIFTON
Third Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
18 OCTOBER 2022
THE COURT ORDERS THAT:
1.The mother’s cross-examination be completed by way of video link.
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 the pseudonym Knight & Knight has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are parenting proceedings involving two children, X and Y. There are a number of parties including the parents of X, the Department of Communities and Justice, Mr Clifton and the maternal grandmother. Mr Clifton has been variously described as the psychological parent of Y. Mr Clifton seeks orders to spend time with her.
The children currently reside with the maternal grandmother, who is opposed to time with Mr Clifton. The mother this morning has indicated to the Court that she is not opposed to Mr Clifton spending time with Y but that it must occur on a supervised basis and on a basis that he has provided some clan drug tests. The mother contends that she has been a victim of family violence perpetrated by Mr Clifton. Mr Clifton denies any allegations of family violence.
Cross-examination of the mother commenced this morning. She is, despite an order having been made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), unrepresented. Mr Clifton is present in Court. Like the mother, he is unrepresented despite an order having been made under s 102NA of the Act.
The mother has been cross-examined about allegations of family violence and things she has said to the Court Child Expert about family violence at the hands of Mr Clifton. On a number of occasions, Mr Clifton has made various outbursts despite being informed that he should not do so.
Division 12A of the Act sets out the principles for conducting child-related proceedings. Section 69ZN(4) and (5) provides as follows:
69ZN Principles for conducting child-related proceedings
Application of the principles
…
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
I am concerned that, in circumstances where the mother alleges that she has been the victim of family violence, the quality of her evidence may be impacted by being cross-examined in the presence of the alleged perpetrator. In so saying, I have not at this stage formed any view about the allegations and note that Mr Clifton denies all of the allegations.
Consistent with the principles as set out earlier and of the Court’s own motion, I propose directing that the mother complete her cross-examination by video link. In doing so, I have had regard to the provisions of ss 69ZQ(1)(aa)(ii) and (1)(e) which provides that the Court may make use of technology in giving effect to the principles under s 69ZN.
I propose making an order therefore to the following effect: the mother’s cross-examination will be completed by the use of technology whereby the mother will be in a room and having access to a video screen where the completion of her cross-examination will take place.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 October 2022
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