LOU & WONG

[2021] FamCA 410

FAMILY COURT OF AUSTRALIA

LOU & WONG [2021] FamCA 410

FAMILY LAW – CHILDREN – Family Violence – where there is an Intervention Order against the father – where both parties are self-represented – where the provisions of section 102NA apply – where the parties cannot cross-examine each other.

Family Law Act 1975 (Cth) s 102NA

APPLICANT: Mr Lou

RESPONDENT: Ms Wong

FILE NUMBER: MLC 11644 of 2016

DATE DELIVERED: 27 May 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 27 May 2021

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the final hearing listed to commence before Johns J at 10.00am on 31 May 2021 be vacated

2. That all extant applications be listed for mention before Johns J at 10.00am on 16 June 2021.

3. The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.

AND THE COURT NOTES

A.That the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them;

B.That the parties have each been advised by the Court:-

(a)       That pursuant to these orders, neither party may cross-examine the other party personally;

(b)       That pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c)       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

(d)       That a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the said scheme.

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 Lou & Wong 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 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11644 of 2016

Mr Lou

Applicant

And

Ms Wong

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been listed before me today at short notice as a result of the Court receiving notice of a final intervention order having been made in relation to the parties. 

2. These proceedings are listed to commence a final hearing before me at 10 am on 31 May 2021. The proceedings relate to parenting arrangements for the parties’ two children, X, aged 11 years, and Y, aged 9 years.  The principal issue in dispute is the amount of time the father should be spending with the children. 

3. Currently the father spends six nights per fortnight with the children.  He seeks orders extending that to seven nights per fortnight.  The mother opposes that application and seeks a reduction in the father’s time to four nights per fortnight.  In addition the father seeks specific orders in relation to accessing the children’s medical records, enabling the children’s school to publish photos and videos of them, and other specific orders around the parties’ communication with each other. 

4. The parties were engaged in litigation in the Magistrates’ Court in addition to the proceedings before this Court. 

5. There were intervention order applications made by each party, which were listed for final hearing in the Magistrates’ Court of Victoria on 13 May 2021.  The father submits that he withdrew his application at that hearing, having regard to the recommendations made by Ms C in the Family Report dated 6 April 2021 filed in these proceedings. He further submits that in addition to withdrawing his own application, he consented to a final intervention order in favour of the mother without admissions so as to end the dispute between them.

6. The father relies upon the family violence final intervention order dated 13 May 2021, which has been provided to the Court.  That order lists the mother and the two children as protected people.  It also confirms that the father consented to the order without admission of the allegations in the application. 

7. The effect of that order is that it will invoke the provisions of section 102NA(2) of the Family Law Act 1975 (Cth) (‘Family Law Act’).

8. Section 102NA of the Act provides mandatory protections for parties in certain cases.  Section 102NA(1) identifies the cases in which the requirements of subsection 2 will be invoked.  It states:

9. Section 102NA(1)  of the Act provides as follows:-

   (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.

1. It is common ground between the parties that there is a final family violence order against the father in favour of the mother.

2. Given the order made in the Magistrates’ Court at Suburb D on 13 May 2021, I am satisfied that section 102NA(1)(c)(ii) of the Family Law Act is satisfied and that the mandatory protections, as set out at section 102NA(2) will apply. Those protections are as follows:

   (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. 

3. Having regard to those provisions, I am satisfied that it is necessary that an order be made pursuant to section 102NA(2) which will apply to any cross-examination occurring in the proceedings before me. Both the mother and the father have confirmed that it was their intention to cross-examine the other in relation to issues between them which they say are relevant to the determination of the issues in the case. Having heard those submission and having been satisfied that such order is appropriate, I will make an order in those terms.

4. I confirm that in so making that order, I have advised both parties that neither may cross-examine the other personally.  Any cross-examination of either the mother or the father by the other party can only be conducted by a legal practitioner acting on behalf of the other party.  Both the mother and the father are entitled to make application under the Commonwealth Family Violence and Cross-Examination of Parties Scheme, and that scheme will enable them to seek the assistance of a lawyer.  In order to access that scheme, it will be necessary for each party to make application to Victoria Legal Aid.  In order to facilitate and assist in that application, a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the Commonwealth scheme.

5. In circumstances where it is necessary for the parties to seek grants of legal aid under the Commonwealth scheme, I will also make orders vacating the final hearing listed to commence next week. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 May 2021.

Associate: 

Date:  17 June 2021