MELLER & FABIAN

In the Family Court of Australia, Ms Meller (the applicant) sought leave to cross-examine Ms B, the author of a Family Report, in proceedings against Mr Fabian (the respondent). The Director-General of the Department of Child Safety, Youth and Women was an interested party. The core of the dispute concerned the applicant's request to cross-examine the Family Report writer at an interim hearing.

The primary legal issue before the court was whether exceptional circumstances existed to permit cross-examination of the Family Report author at an interim hearing, as the Family Law Rules 1975 generally prohibit such cross-examination without leave. The applicant argued that a "misapprehension" by the Family Report writer regarding the applicant's position on the children resuming interaction with the respondent constituted an exceptional circumstance. Conversely, the respondent opposed the application, expressing concern about making decisions based on "imperfect information" if only the report writer, and not the parties themselves, were cross-examined.

Justice Hogan found that the circumstances were exceptional, persuaded by the applicant's assertion that the Family Report writer may have laboured under a misapprehension about the applicant's stance on the children interacting with the respondent pending criminal proceedings. Consequently, the court granted the applicant leave to cross-examine Ms B, but strictly limited the scope of that cross-examination to the issue of the children resuming interaction with the respondent and the associated circumstances. The court also noted that remaining injunctive relief sought would be adjourned to a later date and heard by telephone.