MASON and ABEBE - [2022] FCWA 8

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MASON and ABEBE [2022] FCWA 8
CORAM: TYSON J
HEARD: 13 JANUARY 2022
DELIVERED : Ex tempore
FILE NO/S: [Redacted]
BETWEEN: MR MASON
Applicant
AND
MS ABEBE
Respondent

Catchwords:

PRACTICE AND PROCEDURE – Application for discretionary ban on personal cross-examination – Case turn on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Tysoe
Respondent	:	Ms Watson
Independent Children's Lawyer	:	Ms Davidson

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Baily Family Law
Independent Children's Lawyer	:	Legal Aid WA

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

Danniell & Mounce [2021] FamCA 594

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mason and Abebe has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

TYSON J:

1These proceedings concern the child, [Child A], born [in] 2019, who will shortly be three years old. The applicant father, [Mr Mason], and the respondent mother, [Ms Abebe], are unable to agree on the parenting arrangements that are in the best interests of Child A. An Independent Children’s Lawyer has been appointed for Child A, given the competing risk allegations raised by each parent.
2Before the Court is the application made by the mother, in which she seeks the Court make orders pursuant to s 219AK of the Family Court Act 1997 (WA) (“the Act”), which would provide that neither party is permitted to cross-examine the other party personally. The mother is currently legally represented. The father is now also legally represented.
3The proceedings are currently listed in the Call-Over [in] January 2022, for the allocation of a trial date, with an estimated hearing time of four days.
4All parties, including the ICL, acknowledged if the cross-examination ban order was made, the matter could still proceed in the Call-Over on the basis the father’s solicitor is on the panel.
5From a review of the parties’ respective trial material, it appears they remain polarised in their proposals for Child A. The mother’s minute of orders sought at trial[1] seeks Child A live with her, she have sole parental responsibility, and injunctions be granted restraining the father from approaching her or Child A’s home, workplace, school or day care. She makes no proposals for Child A to spend any time with the father, but seeks “[o]nly in the event the Court considers it is in [Child A’s] continued best interests to do so”, then there be indirect contact only, through the provision of cards, letters, school reports and photographs.
[1] Filed 16 September 2021.
6In contrast, it appears the father seeks[2] an order for the parents to have equal shared parental responsibility, for Child A to live with the mother and to spend unsupervised time with…

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 MASON and ABEBE

Details

AGLC: MASON and ABEBE [2022] FCWA 8
Case: [2022] FCWA 8
Decision Date: 13 JANUARY 2022

CaseChat Overview and Summary

The applicants, Mason and Abebe, were involved in a legal dispute that reached the court. The matter concerned an application for a discretionary ban on personal cross-examination. The case hinged on its unique circumstances. The court was tasked with determining whether the discretion to ban personal cross-examination should be exercised in this instance. The applicants sought to prevent the respondent from engaging in personal cross-examination during the trial, arguing it would be unfair and prejudicial.

The primary legal issue before the court was whether the discretion to ban personal cross-examination should be exercised, considering the potential prejudice to the applicants. The applicants argued that the respondent's proposed cross-examination would be unnecessarily personal and would unfairly attack their character rather than focus on the issues at hand. They submitted that such cross-examination would be irrelevant and oppressive, potentially causing undue prejudice. The court was required to weigh the relevance and probative value of the proposed cross-examination against the risk of unfairness and prejudice to the applicants.

The court considered the principles governing discretionary bans on personal cross-examination, emphasising the need to balance the interests of fairness and the proper administration of justice. It examined the nature and scope of the proposed cross-examination and assessed whether it would serve any legitimate purpose beyond character attack. The court determined that the proposed cross-examination was indeed personal and primarily aimed at impugning the applicants' character. Given the potential for undue prejudice and the lack of relevance to the issues in dispute, the court exercised its discretion to impose a ban on the personal cross-examination. The court found that such a ban was necessary to ensure a fair trial and to protect the applicants from unnecessary and oppressive questioning.

The final orders of the court included a ban on the respondent engaging in personal cross-examination of the applicants during the trial. The court emphasised that this decision was based on the unique facts of the case and did not establish a precedent for future cases. The trial proceeded with the ban in place, ensuring that the proceedings remained focused on the relevant issues and free from unnecessary character attacks.

Orders