Lazer & Haines - [2022] FedCFamC1F 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lazer & Haines [2022] FedCFamC1F 35

File number(s): LEC 208 of 2019

Judgment of: JARRETT J

Date of judgment: 3 February 2022

Catchwords: FAMILY LAW – CHILD WELFARE – The Family
Law Act 1975 (Cth) and related legislation – s 102NA of the Family Law Act 1975 (Cth) – statutory interpretation – discretionary ban on personal cross-examination – relevant factors to consider

Legislation:
Family Law Act 1975 (Cth) ss 102NA(1)(c)(i) – (iii), 102NA(1)(c)(iv), 102NA(2)

Victims Rights and Support Act 2013 (NSW)

Cases cited:
Hurley and Melton (No. 2) (2020) 61 Fam LR 405

Owen and Owen (2020) 60 Fam LR 334

Division: Division 1 First Instance

Number of paragraphs: 28

Date of last submission/s: 23 December, 2021

Date of hearing: By written submission

Place: Brisbane

Counsel for the Applicant: Mr Priestley

Solicitor for the Applicant: Walters Solicitors

Solicitor for the Respondent: In person

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

LEC 208 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LAZER

Applicant

AND:
MS HAINES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) are to apply to the cross-examination of the applicant by the respondent in these proceedings.

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 Lazer & Haines is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

The principal application for parenting and property orders between these parties is set down for final hearing in Lismore from 16 to 20 May, 2022 before me.
By an oral application made on 25 November, 2021 before another judge of this Court, the respondent, Ms Haines, seeks an order pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) that the requirements of s 102NA(2) of the Act are to apply to the cross-examination of the applicant by her for the purposes of the trial.
Upon the making of that application, another judge of this Court made directions for the respondent to file and serve an affidavit providing any evidence to support the making of the order sought…

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 35
Decision Date

CaseChat Overview and Summary

The case of Lazer & Haines was heard in the Federal Circuit and Family Court of Australia, Division 1, where Ms Haines sought an order for the cross-examination of Mr Lazer to be conducted by her lawyer rather than herself. Ms Haines sought the order under s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) to ensure the requirements of s 102NA(2) applied to the cross-examination of Mr Lazer for the purposes of the trial. The primary issue the court needed to decide was whether the discretionary ban on personal cross-examination should apply in this case. The court needed to consider the purpose of the legislation, the nature and extent of the allegations of family violence, and whether the respondent could adequately cross-examine the applicant without the assistance of legal representation.

In reaching its decision, the court considered the purpose of the legislation to address problems of re-traumatisation and power imbalances created by family violence, as well as the relevance of the allegations of family violence in this case. The court found that the allegations of family violence made by Ms Haines, while not well particularised, were sufficient to warrant a discretionary ban on personal cross-examination. The court considered that the intimate nature of the allegations and the potential for a power imbalance between the parties could compromise the integrity of the evidence in the proceedings. As a result, the court exercised its discretion and made an order that the provisions of s 102NA(2) apply to the cross-examination of Mr Lazer in these proceedings.

The final orders made by the court were 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 the applicant by the respondent in these proceedings.

Orders