MELLER & FABIAN

[2020] FamCA 1146

FAMILY COURT OF AUSTRALIA

MELLER & FABIAN [2020] FamCA 1146

FAMILY LAW – PRACTICE AND PROCEDURE – leave to cross-examine author of the Family Report at interim hearing sought – leave granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Meller

RESPONDENT: Mr Fabian

FILE NUMBER: BRC 14978 of 2019

DATE DELIVERED: 24 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horsley

SOLICITOR FOR THE APPLICANT: DA Family Lawyers

THE RESPONDENT: In person

SOLICITOR FOR INTERESTED PARTY: Ms Walsh

INTERESTED PARTY: Director-General, Department of Child Safety, Youth and Women

Orders

IT IS ORDERED THAT

1. The remaining injunctive relief sought in the Amended Application in a Case filed 23 July 2020 is adjourned to 9.00 am on Friday, 31 July 2020 before Justice Hogan with the hearing to be conducted by telephone using the telephone link system “GlobalMeet” as follows:

   (a)the legal representatives for the parties shall each telephone … (toll free) by 8.55 am on 31 July 2020;  and

   (b)they shall each then enter the pass code … and then press the # key; and

   (c)they shall each hold the line until the Court is ready to connect and proceed with the matter.

2. The Applicant has leave to cross-examine Ms B, Family Report Writer, by telephone in the proceedings today strictly in relation to the issue of the children resuming interaction with Mr Meller and the circumstances associated with that.

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 Meller & Fabian 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 BRISBANE

FILE NUMBER: BRC 14978 of 2019

Ms Meller

Applicant

And

Mr Fabian

Respondent

And

Director-General, Department of Child Safety, Youth and Women

Interested Party

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application made on behalf of the mother, seeking leave to cross-examine Ms B, the author of the Family Report proceedings.  Such leave is sought because the Rules prescribe that, at the hearing of interim applications, cross-examination is not usually permitted and is not permitted without leave. 

2. The necessary prerequisite for an order for leave permitting cross-examination on an interim basis is that the circumstances of the case are exceptional.

3. Ms Horsley, who appears on behalf of the mother, has made a number of submissions in support of her client’s application.  They may be summarised primarily, I think, as being, in essence, that because of what was phrased as a “misapprehension” on the part of the author of the Family Report, that person did not give consideration to the issue of the children resuming interaction with Mr Meller, albeit on a supervised basis and in the manner the mother now advances.  In essence then, Ms Horsley says that this gives rise to the exceptional circumstance.

4. Mr Fabian, who appears on his own behalf, opposes the grant of leave.  In essence, he does so because of a concern that the Court will receive what I will summarise as being, I think his phrase was “imperfect information”:  that if only Ms B was cross-examined, in the absence of the parties themselves being the subject of cross-examination, I would be asked to make a decision about those orders which are now in the children’s best interest on the basis of “imperfect information”.

5. Whilst others may disagree, I am, on balance, persuaded that the circumstances are exceptional insofar as the issue raised by the mother about what is asserted to be a misapprehension on the part of Ms B about the mother’s attitude towards and position in relation to, the children spending any time at all with Mr Meller until the criminal proceedings against him are finalised.

6. Given that, I intend to grant Ms Horsley leave to cross-examine Ms B – but only in relation to that issue:  namely, the children resuming interaction with Mr Meller and the circumstances associated with that, given the mother’s application for orders that that recommence in the manner set out in the Amended Initiating Application most recently filed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2020.

Associate:     

Date:              24 July 2020