Nevins & Urwin (No 2) - [2022] FedCFamC1F 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nevins & Urwin (No 2) [2022] FedCFamC1F 121

File number(s): BRC 5254 of 2018

Judgment of: HOGAN J

Date of judgment: 7 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ordered to apply.

Legislation:
Family Law Act 1975 (Cth)

Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018

Cases cited: Hurley v Melton (No. 2) (2020) 61 Fam LR 405; [2020] FamCA 917

Number of paragraphs: 12

Date of hearing: 7 March 2022

Place: Brisbane

Counsel for the Applicant: Mr McGregor

Solicitor for the Applicant: Hofstee Lawyers

Solicitor for the Respondent: Amanda Fawaz Solicitor

Solicitor for the Independent Children's Lawyer: Legal Aid Queensland
ORDERS

BRC 5254 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NEVINS

Applicant

AND:
MR URWIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

7 MARCH 2022

IT IS ORDERED THAT:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.

NOTATION
A.
Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies to any

cross-examination in the proceedings, the Court has today advised the parties that:
(i)pursuant to those requirements, neither party may cross-examine the other party personally; and
(ii)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; and
(iii)they are able to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for the provision of a lawyer by completing an application form available by accessing CrossExaminationScheme@Legalaid.nsw.gov.au; and
(iv)a copy of these Orders will be provided by the Court to Legal Aid New South Wales, which administers the said scheme.

IT IS NOTED:
B.The Court respectfully requests that Legal Aid New South Wales accord any Application submitted by the Respondent father for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the part-heard proceeding is listed to recommence on 28 March 2022.
C.The Court respectfully requests that Legal Aid New South Wales consider allocating the matter of the Respondent father’s representation in these proceedings to his current solicitor, Ms Fawaz given her long standing involvement in the proceedings and that she was the solicitor on the record when the matter was before the Court prior to the Respondent father being charged in August 2019.

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…

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 Nevins & Urwin (No 2)

Details

AGLC: Nevins & Urwin (No 2) [2022] FedCFamC1F 121
Case: [2022] FedCFamC1F 121
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an application in the case of Nevins & Urwin (No 2) involving a dispute between a mother and a father. The father applied for the Court to order the application of certain provisions in the Family Law Act 1975 (Cth) to the cross-examination of the mother. The legal issues before the Court included whether the provisions of s 102NA(2) of the Act should apply to the cross-examination of the mother by the father and if so, the manner in which such cross-examination should be conducted.

The Court found that it was appropriate to order the application of s 102NA(2) of the Act to the cross-examination of the mother by the father. The Court based its decision on the circumstances of the case, including the existence of a final apprehended violence order and the previous involvement of the parties in criminal proceedings. The Court reasoned that the purpose of the legislation was to protect the integrity of the litigation process and to prevent the potential re-traumatisation of alleged victims of family violence. The Court made an order that neither party may cross-examine the other personally and that any cross-examination must be conducted by a legal practitioner acting on behalf of the other party. The Court also provided guidance on how the father could access legal representation through the Commonwealth Family Violence and Cross-Examination of Parties Scheme and requested that Legal Aid New South Wales prioritise the father's application for legal representation.

The Court's decision highlights the importance of protecting alleged victims of family violence in family law proceedings and the role of the Court in ensuring that the integrity of the litigation process is maintained. The Court's order also demonstrates the availability of legal assistance to parties involved in family law proceedings, particularly in cases where family violence is alleged.

Orders