Morcos & Lindon

[2023] FedCFamC1F 1010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morcos & Lindon [2023] FedCFamC1F 1010

File number(s):

MLC 209 of 2020

Judgment of:

BENNETT J

Date of judgment:

20 November 2023

Catchwords:

 FAMILY LAW –  PROPERTY SETTLEMENT – Domestic Violence – where husband appears in person – where s102NA(2) applies – where husband is warned that he will not be able to cross-examine wife without representation  – where husband does not want to retain solicitors – where an order for specific questions is made

Legislation:

Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth)

Federal Circuit and Family Law Rules 2021 (Cth)

Division:

Division 1 First Instance

Number of paragraphs:

8

Date of hearing:

20 November 2023

Place:

Melbourne

Counsel for the Applicant:

Litigant in person

Counsel for the First Respondent:

Ms Rosner

Solicitor for the First Respondent:

Zeno Lawyers

Counsel for the Second Respondent:

Litigant in person

ORDERS

MLC 209 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORCOS

Applicant

AND:

MS LINDON

First Respondent

EXECUTOR OF THE ESTATE OF THE LATE MS B

Second Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	20 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The final hearing set down before me to commence on 4 December 2023 be and is hereby vacated.

2.This matter be fixed for final hearing before me on 22 April 2024 estimated to take 3 days (“the final hearing”).

3.Specific questions be and hereby served by either party by 1 February 2024 and answered by 20 February 2024.

4.Pursuant to section 102NA(1) of the Family Law Act 1975 (Cth) (the Act), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.

5.The question of the costs of the parties of this day be reserved.

AND THE COURT NOTES THAT:

A.Pursuant to paragraph 4 hereof, the applicant do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable their legal representation at the final hearing.

B.The relevant application referred to in Notation A hereof is available to the parties at

C.The parties have each been advised by the Court that:

a.pursuant to those requirements, neither party may cross-examine the other party personally;

b.pursuant to those requirements, 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.a copy of these orders will be provided by the court to Victoria Legal Aid, which administers the said scheme.

D.In the event the applicant has not engaged the cross examination of parties scheme or engaged in private legal representation the final hearing will proceed on the basis that the applicant will not be able to cross-examine the respondent.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX-TEMPORE

BENNETT J:

1. This matter comes before me as a mention in anticipation of a hearing that is to commence on 4 December 2023.  This is a matter that has already had one day of hearing and then been interrupted. It now transpires that I will not be available for the hearing on 4 December 2023, and the parties have accepted the next available hearing date, which is 22 April 2023.  They say it is not necessary for any further documents to be filed or served. 

2. I will adjourn the matter accordingly. 

3. The husband appears for himself today.  He will not be retaining solicitors because, he says, he does not trust lawyers.  He says that solicitors and lawyers have ruined his life and his case in this Court.  The wife complains of various episodes of domestic violence, physical and otherwise.  She obtained intervention orders against the husband, including a final intervention order. The father similarly complains that the wife was violent to him.  On 10 December 2018 the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) was assented to. It came into force in September 2019. The consequence of that is that the husband will not be entitled to cross-examine the wife in these proceedings unless he retains a lawyer.

4. I have explained to the husband that the consequence of him not having a lawyer is that he will not be permitted to cross-examine the wife.  He says that all of his evidence is in his affidavit.  However, cross-examination is the optimal way to test the wife’s case.  They are very far apart on facts and I would expect that the cross-examination could be quite substantial from the husband’s perspective. 

5. I have informed the husband that, from my vantage point, he is imposing upon himself a significant limitation if he cannot test the wife’s case.  He will not be able to put to her certain facts and matters which may lead to her amending her evidence or conceding that her evidence is incorrect, or having the Court find that her evidence on particular points is not credible.

6. When this matter is mentioned before me, the husband wants to make speeches.  He wants to tell me his side of the story.  I have declined to hear his side of the story because it should be in affidavit and mentions are not the time to do so.  However, today I have asked the husband to reflect that the very matters that he usually wants to tell me from the bar table at mentions are the sorts of matters that he may appropriately require the wife to be cross-examined about. Such as how certain funds were applied. The husband has been informed that if he does not have a lawyer to cross-examine the wife, he will not be permitted to cross-examine the wife at the trial hearing.   

7. As it appears that the matter will proceed to a hearing without the husband necessarily making an application to Victoria Legal Aid for the appointment of a section 102NA lawyer, I have considered what other ways there are for the husband to obtain evidence.  I have raised with him about specific questions.  These are questions pursuant to Rule 6.22 of the Federal Circuit and Family Law Rules 2021 (Cth) which came into force on 1 September 2021. The new Rules apply to a proceeding that was commenced in accordance with the old Rules and was not determined before the repeal of those Rules. Rule 6.22 is as follows:

   Service of specific questions

   (1)After a proceeding has been allocated a first court date, a party (the requesting party) may serve on another party (the answering party) a request to answer specific questions.

   (2)A party may only serve one set of specific questions on another party.

   (a)The specific questions must:

   (b)be in writing; and

   (c)be limited to 20 questions (with each question taken to be one specific question); and

   (d)not be vexatious or oppressive.

   (3)If an answering party is required, by a written notice served under rule 6.09 or an order, to give the requesting party a list of documents, the answering party is not required to answer the questions until the time for disclosure under Part 6.2 or an order has expired.

   (4)The requesting party must serve a copy of any request to answer specific questions on all other parties.

8. Answers to specific questions must be served, in affidavit form, within 21 days of the request. Pursuant to Rule 6.23 answers must fully and frankly answer each specific question or otherwise object to answering that specific question. An objection must specify the grounds for objection with supporting facts.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       20 November 2023