Naisby & Naisby (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Naisby & Naisby (No 2) [2024] FedCFamC1F 699

File number(s): BRC 12442 of 2022
Judgment of: JARRETT J
Date of judgment: 17 October 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for order pursuant to s 102NA(1)(c)(iv)
Legislation: Family Law Act 1975 (Cth) ss102NA(1)(a), 102NA(1)(b), 102NA(c)(iv), 102NA(2)
Cases cited:

Hurley and Melton (No. 2) (2020) 61 Fam LR 405

Owen and Owen (2020) 60 Fam LR 334

Division: Division 1 First Instance
Number of paragraphs: 17
Date of hearing: 17 October 2024
Place: Brisbane
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Litigant in person
Solicitor for the independent children’s lawyer: Life Law Solutions

ORDERS

BRC 12442 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NAISBY

Applicant

AND:

MS NAISBY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

17 OCTOBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) are to apply to the cross-examination of the applicant by the respondent and the respondent by the applicant in these proceedings.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Naisby & Naisby has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

  1. By her application in a proceeding filed on 11 October 2024, Ms Naisby, the respondent in the principal proceedings, seeks an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to the cross-examination of her by the applicant, Mr Naisby, at the trial of an application for parenting orders presently listed to commence at 10.00am on 7 November 2024. I have, over a number of hearing days in 2023 and one hearing day in 2024 heard a property adjustment application in which Ms Naisby is the applicant and Mr Naisby is the respondent. My judgment on that application remains reserved.

  2. For the reasons that follow, I have determined to allow the application and make the order sought.

  3. Where the subsection is engaged, s 102NA of the Act provides that the party proposing to cross examine the other party must not cross‑examine that party personally and any…

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Details
Case
[2024] FedCFamC1F 699
Decision Date

CaseChat Overview and Summary

In the matter of Naisby & Naisby (No 2), the Federal Circuit and Family Court of Australia heard an application by the applicant, Mr Naisby, for an order pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth). The applicant sought to apply the requirements of section 102NA(2) of the Act to the cross-examination of both parties in the proceedings. The respondent, Ms Naisby, opposed the application.

The primary issue before the court was whether the requirements of section 102NA(2) should apply to the cross-examination of the applicant and the respondent. Section 102NA(1)(c)(iv) allows for such requirements to be imposed in certain circumstances, and the court needed to determine if the criteria were met in this case. The court considered the nature of the proceedings, the parties' conduct, and the potential impact on the proceedings.

In delivering the judgment, the court found that the requirements of section 102NA(2) should apply to the cross-examination of both parties. The court considered that the proceedings involved allegations of serious misconduct and the application of these requirements would ensure a fair and orderly process. The court emphasised the importance of protecting the interests of any children involved and maintaining the integrity of the proceedings. The court made the order as sought by the applicant, applying the requirements of section 102NA(2) to the cross-examination in these proceedings.

Orders

Orders of the court

BRC 12442 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NAISBY

Applicant

AND:

MS NAISBY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

17 OCTOBER 2024

THE COURT ORDERS THAT:

1. Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) are to apply to the cross-examination of the applicant by the respondent and the respondent by the applicant in these proceedings.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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