Muratov and Muratov - [2019] FamCA 1014

FAMILY COURT OF AUSTRALIA

MURATOV & MURATOV

[2019] FamCA 1014

FAMILY LAW – PRACTICE AND PROCEDURE – matter listed for three day trial – where the father has recently become self-represented – where discretion under s 102NA of the Family Law Act 1975 is applied – where the use of a telephone interpreter for trial is not proper – where procedural fairness demands trial to be adjourned

Family Law Act 1975 (Cth) s 102NA

APPLICANT:

Mr Muratov

RESPONDENT:

Ms Muratov

FILE NUMBER:

BRC

6640

2017

DATE DELIVERED:

18 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

18 November 2019

REPRESENTATION

THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr C Bolovan

SOLICITOR FOR THE RESPONDENT:

Genuine Legal WA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D Carlton

INDEPENDENT CHILDREN’S LAWYER:

Ms C Burchill
Burchill & Horsey Lawyers

Orders

UPON NOTING 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 and further noting 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 Legal Aid Queensland, which administers the said scheme.
THE COURT ORDERS UNTIL FURTHER ORDER:

That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.
That the Final Hearing of these proceedings listed 18, 19 and 20 November 2019 be adjourned to 10.00am on 9, 10 and 11 March 2020 in the Family Court of Australia at Brisbane.
That the parties have leave to file one (1) Affidavit of any updating evidence in chief by 4.00pm on 24 February 2020.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

That the child, X born in 2006 (“the child”) live with the mother in Australia.
That the child shall spend time with the father as agreed between the parents in writing, but failing agreement:
(a)during school holiday periods as agreed but failing agreement for the first half of the Queensland gazetted school holiday period in even numbered years and the second half in odd numbered years;
(b)from after school Friday until 5.00pm Sunday each alternate weekend; and
(c)from 12.00pm Christmas Day until 12.00pm Boxing Day.
That changeover is to occur at the child’s school on school days and at McDonald’s Suburb B on non-school days unless otherwise agreed.
That the child be at liberty to communicate with the father at any reasonable time and with the mother when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muratov and Muratov

Details

AGLC: Muratov and Muratov [2019] FamCA 1014
Case: [2019] FamCA 1014
Decision Date: 18 November 2019

CaseChat Overview and Summary

In the Family Court of Australia, Justice Baumann considered proceedings between the parties, Mr. and Mrs. Muratov, concerning parenting arrangements for their child, X. The dispute involved allegations of family violence between the parents, and the court noted that both parties intended to cross-examine each other.

The primary legal issue before the court was how to manage the cross-examination of the parties, given the allegations of family violence and the potential for personal cross-examination to exacerbate the situation. The court also had to determine interim parenting orders for the child, X.

Justice Baumann applied section 102NA(2) of the *Family Law Act 1975*, which governs cross-examination in family violence proceedings. The court ordered that neither party could cross-examine the other personally; any cross-examination must be conducted by a legal practitioner. The court also informed the parties about the Commonwealth Family Violence and Cross-Examination of Parties Scheme and provided details to Legal Aid Queensland for their consideration. The final hearing was adjourned to allow for compliance with these orders and the provision of updating evidence.

By consent, the court made interim orders regarding the child's living arrangements, time spent with each parent, communication protocols between parents and with the child, and prohibitions against denigration of either parent. These orders were made until further order, with existing orders from 18 July 2018 remaining in force.

Orders

Orders of 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 Legal Aid Queensland, which administers the said scheme.

THE COURT ORDERS UNTIL FURTHER ORDER:

That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

That the Final Hearing of these proceedings listed 18, 19 and 20 November 2019 be adjourned to 10.00am on 9, 10 and 11 March 2020 in the Family Court of Australia at Brisbane.

That the parties have leave to file one (1) Affidavit of any updating evidence in chief by 4.00pm on 24 February 2020.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

That the child, X born in 2006 (“the child”) live with the mother in Australia.

That the child shall spend time with the father as agreed between the parents in writing, but failing agreement:

(a) during school holiday periods as agreed but failing agreement for the first half of the Queensland gazetted school holiday period in even numbered years and the second half in odd numbered years;

(b) from after school Friday until 5.00pm Sunday each alternate weekend; and

That changeover is to occur at the child’s school on school days and at McDonald’s Suburb B on non-school days unless otherwise agreed.

That the child be at liberty to communicate with the father at any reasonable time and with the mother when not living with her and in relation to such communication:

(a) when the child is communicating with the other parent each parent shall:

(i) ensure that the child is available to receive the telephone call;

(ii) arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and

(iii) ensure that the child has privacy during his communication with the other parent.

(b) the child is at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the child to make any calls they request.

That the parents shall communicate about the child’s care, welfare and development by email or text message except in emergent circumstances. Particularly if the child becomes ill in the care of the father he shall notify the mother forthwith.

That neither parent shall discuss these proceedings with the child.

10.

That neither parent will denigrate the other or their family to, or in front of, or within the hearing of the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and failing their compliance with such a direction shall remove the child from that environment immediately.

11.

That all orders made by this Honourable Court on 18 July 2018 remain in force.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.