Mitchell & Boyle
[2022] FedCFamC1F 557
•27 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mitchell & Boyle [2022] FedCFamC1F 557
File number(s): SYC 811 of 2019 Judgment of: SMITH J Date of judgment: 27 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Oral application by first respondent father to require counsel for second respondent mother to ask only non-leading questions of applicant grandmother – Judgment ex-tempore – Application dismissed Legislation: Evidence Act 1995 ss 26, 37
Family Law Act 1975 (Cth) Part IV, Div 12A
Division: Division 1 First Instance Date of hearing: 27 July 2022 Place: Sydney Number of paragraphs: 12 Date of hearing: 27 July 2022 Place: Sydney by Microsoft Teams Counsel for the Applicants: Ms Bateman Solicitor for the Applicants: Swifte Law Counsel for the Respondents: Mr Fantin for the First Respondent and Ms Kaiti for the Second Respondent Solicitor for the Respondents: SCB Legal Pty Ltd for the First Respondent and Inner West Solicitors Pty Ltd for the Second Respondent Solicitor for the Independent Children's Lawyer: Ms Blackman as Solicitor Advocate Solicitor for the Independent Children's Lawyer: Legal Aid Newcastle ORDERS
SYC 811 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MITCHELL
First Applicant
MS WALBERG
Second Applicant
AND: MR BOYLE
First Respondent
MS MITCHELL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
27 JULY 2022
THE COURT ORDERS THAT:
1.The oral application on behalf of the father that Counsel for the mother be required to ask only asking leading questions within the meaning of section 37 of the Evidence Act 1995 (Cth) when examining the applicant grandmother be dismissed.
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 Mitchell & Boyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
There is an oral application on behalf of the father to require Counsel for the mother to ask only asking leading questions, within the meaning of section 37 of the Evidence Act 1995 (Cth) (“the Evidence Act”), of the applicant grandmother. That restriction would usually be a placed only upon examination-in-chief.
The basis of the application is that since the mother had indicated, for the moment at least, that she proposes to support the orders proposed by the applicant grandparents that, in effect, it would be unfair to allow her to cross-examine the applicants.
This is not a case, which sometimes occurs, where the mother says she supports the grandparent’s orders and they are all just lined up against the father.
The orders that the grandparents seek exclude the mother from parental responsibility just as much as they exclude the father. This is not a case where the mother and the grandparents would all have parental responsibility.
This is not a case where the mother and the grandparents would all have equal untrammelled access to the child.
The orders proposed by the grandparents, whilst not as restrictive on the mother as those proposed in respect of the father, nevertheless, involve the grandparents ultimately having the last say about the children including about any time with the mother.
This is as set out in what is now MFI 10, the current grandparents’ proposal.
Indeed, according to the grandparents’ proposal, the mother would be restrained from entering New South Wales, and the mother would be restricted to only spending time with the children as agreed to by the grandparents,
In those circumstances, I do not consider the mother’s interests are entirely aligned with the grandparents, because she is conceding all power and responsibility to them, it is merely that she is accepting on the evidence that these are appropriate orders to make.
The mother is also entitled, if she thinks the father is unsafe for the children, to separately pursue a case that he should spend no time and have no communication with the children as the grandparents propose.
Accordingly, in the exercise of my discretion both under s 26 of the Evidence Act and also pursuant to the provisions to control proceedings in Part VII Division 12A of the Family Law Act 1975 (Cth), I will not restrict the Counsel for the mother to only asking non-leading questions in cross-examination of the grandmother.
Those are my reasons.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 4 August 2022
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