Melendez & Hayden
[2023] FedCFamC1F 910
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melendez & Hayden [2023] FedCFamC1F 910
File number(s): MLC 4000 of 2022 Judgment of: JOHNS J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for s 102NA order – where the mother alleges she has been subjected to family violence by the father – where the father has made admissions regarding the family violence – where the father does not oppose the mother’s application – order granted pursuant to s 102NA(1)(c)(iv)
FAMILY LAW – PRACTICE AND PROCEDURE – where the father made application for full and frank disclosure by the mother of documents related to her finances – where there are no financial proceedings on foot – where the father submits the disclosure goes to the mother’s credit – application dismissed
Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia Rules 2021 (Cth) Rule 6.09
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 13 October 2023 Place: Melbourne Solicitor for the Applicant: Mr Field (Duty Lawyer) Counsel for the Respondent: Mr Mort Solicitor for the Respondent: Saunders Family and Estate Lawyers Solicitor for the Independent Children's Lawyer: Ms Pandeli of Barbayannis Lawyers ORDERS
MLC 4000 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MELENDEZ
Applicant
AND: MR HAYDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross‑examination occurring in the proceedings.
2.The application in a proceeding filed 25 September 2023 and the Response to Application in a Proceeding filed 12 October 2023 be dismissed.
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 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 Melendez & Hayden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today upon an Application in a Proceeding filed on behalf of the mother on 27 September 2023. That application seeks an order that the provisions of section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”) apply, such that neither the mother nor the father be permitted to personally cross-examine the other for the purposes of these proceedings. The application of the mother is supported by her affidavit filed 25 September 2023.
The father filed a Response to an Application in a Proceeding on 12 October 2023. That response notes that the father does not oppose the orders sought by the mother with respect to section 102NA of the Act, albeit that the father submits that the provisions of sub-sections (1)(i) to (iii) of section 102NA(1)(c) do not apply in this matter.
The Independent Children’s Lawyer confirmed her position that she does not oppose the mother’s application pursuant to section 102NA of the Act.
In addition to the issue with respect to section 102NA, the father seeks orders pursuant to Rule 6.09 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth), that the mother provide full and frank disclosure of various financial documents, including but not limited to her Income Tax Returns and Notices of Assessment for the years ending 30 June 2019 to 30 June 2023. The father’s response is supported by his affidavit filed 12 October 2023. The mother opposes the father’s application for disclosure.
The background to the proceedings is as follows.
The mother is aged 28 years. She resides in Town B. She is engaged in part-time employment as a health professional and is otherwise occupied by home duties, albeit that she has recently given birth to her second child. As such, it is her evidence that she is currently not working.
The father is aged 43 years. He resides in Suburb C. He is currently engaged in employment as a transport worker.
The parties commenced cohabitation in 2018. They married in 2019. Whilst there is some dispute as to the date of separation, it is common ground that the parties have been separated on a final basis since 2022.
There is one child of their relationship, X, who was born in 2019 and is aged almost four years. X lives with the mother and spends supervised time with the father each weekend pursuant to interim orders made by the Court on 14 December 2022.
The matter is listed for a final hearing on 27 November 2023, in relation to the parties competing parenting applications. The mother has had legal representation until relatively recently. That representation has ceased, and her former solicitors have filed a Notice of Ceasing to Act, albeit it is understood that the position is that in the event the mother’s application for an order pursuant to section 102NA of the Act is successful, her former solicitors are prepared to be re-engaged under a Commonwealth Grant to represent the mother at the final hearing.
It is common ground between the parties that there has been family violence intervention orders previously made. There was a final intervention order made in late 2019 for the protection of the mother against the father. That order expired in late 2020.
In her affidavit filed in support of her application, the mother deposes that she has experienced family violence at the hands of the father. She alleges that she has been subjected to verbal abuse, and physical abuse, including being pushed and slapped by the father during her pregnancy with the child.
The parties have attended upon Ms D for the purposes of a Family Report. Ms D’s report is dated 2 June 2023. Ms D notes, in that report, the admissions made by the father as to him perpetrating family violence against the mother. At [11] of that report, Ms D notes as follows:-
…[Mr Hayden] was teary when he mentioned that he had verbally and physically hurt [Ms Melendez] during the relationship and wanted to apologise to her but was struggling not knowing how to go about it.
Further, at [17] of that report, Ms D notes the mother’s report of family violence as follows:-
…[Ms Melendez] spoke about having endured verbal abuse and being pushed and slapped by the father when she was pregnant with [X], which had led to their initial separation.
Having regard to the matters contained in the Family Report, and particularly the father’s admissions noted by Ms D in that report, I am satisfied that the mother has been a victim of family violence at the hands of the father. Given the concerns raised by the mother in her affidavit and as disclosed in that report, I am satisfied that this is a matter where it is appropriate that the discretion be exercised, such that an order be made pursuant to section 102NA(2) of the Act.
Accordingly, I will make an order that section 102NA of the Act applies, the effect of which will be that neither the mother nor the father may cross-examine the other during the final hearing, and that any such cross-examination of the other party must be conducted by a legal practitioner acting on behalf of the examining party.
As to the father’s application for disclosure, I invited Counsel representing him to identify the basis upon which such application was made, particularly having regard to the fact that the only issues before the Court relate to the future parenting arrangements for the parties’ young child. There are no financial proceedings before the Court.
Counsel for the father indicated that the only possible basis upon which that information could be sought would relate to the mother’s credibility, it being the father’s position that the mother is working at times when she represents that she is caring for the child.
In circumstances where there is no challenge to the mother’s position as primary carer for the child, that is, where both parties agree that the child will continue to live with the mother, I am not persuaded that the documents sought are relevant to the issues in dispute. Accordingly, I am not satisfied there is any proper basis for the disclosure as sought by the father and I will dismiss that application.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 24 October 2023
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