Newport and Newport and Ors (No 2)

[2017] FamCA 853

FAMILY COURT OF AUSTRALIA

NEWPORT & NEWPORT & ORS (NO. 2) [2017] FamCA 853

FAMILY LAW – PRACTICE AND PROCEDURE – Where an objection was made to the ongoing cross-examination of the mother on one particular issue concerning family violence – Where the mother appeared visibly distressed during cross-examination – Where the cross-examination in relation to the issue of family violence had been ongoing in excess of a day of hearing – Where the father disputes the allegation of family violence and consequently contended that there is a reasonable basis for the questioning of the mother – Where in those circumstances the Court permitted the cross-examination to occur – Consideration of Family Violence Best Practice Principles in relation to vulnerable witnesses – Courts permits the cross-examination to continue – objection dismissed.

Family Law Act 1975 (Cth) s 69ZX

Family Court of Australia, Family Violence Best Practice Principles 4^th Edition, December 2016

APPLICANT: Ms Newport

RESPONDENT: Mr Newport

SECOND RESPONDENTS:  Mr K Newport and Ms L Newport

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 2571 of 2015

DATE DELIVERED: 18 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 18 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Pearson Emerson Meyer

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley

COUNSEL FOR THE SECOND RESPONDENTS: Ms Petrie

SOLICITORS FOR THE SECOND RESPONDENTS:	Tiyce Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Longworth

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

THE COURT ORDERS THAT:

1. The objection to the ongoing cross-examination of the mother concerning alleged events that occurred on 30 March 2015 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newport & Newport and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2571 of 2015

Ms Newport

Applicant

And

Mr Newport

Respondent

And

Mr K Newport And Ms L Newport
Second Respondents

And

Legal Aid New South Wales
INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the applicant mother has been subject to extensive cross-examination regarding events that she alleges occurred on 30 March 2015.  Senior counsel for the mother points out that the cross-examination has endured for in excess of a day of hearing. The cross-examination has occurred in circumstances where the mother has been visibly distressed at aspects of the cross-examination. 

2. On one occasion I invited the mother to advise whether she required a break in proceedings to compose herself. At that stage the mother indicated that she did not require a break and that she “wanted it over”. I took that to mean that the mother wanted the cross-examination to conclude as soon as possible. 

3. On a second occasion, when the mother again became visibly distressed, she accepted the invitation to have a short break in proceedings. On a third occasion when the mother became distressed, senior counsel for the father invited the mother to indicate whether she wished to have a break in the proceedings and she declined that offer.

4. Yesterday, as a result of the mother’s distress to ongoing questioning, I adjourned the Court shortly prior to the scheduled time.

5. It is clear that this witness has been visibly distressed by the cross-examination that she has been subject to. The majority of that cross-examination has focussed on the mother’s allegations that she was the subject of family violence on 30 March 2015.

6. Senior Counsel for the mother has objected to the ongoing cross-examination of the mother in respect to this issue and he has invited the Court and the parties to take note of the Family Violence Best Practice Principles (“the Principles”) issued by the Court.[1] Specifically, reference has been made to Part B of the Principles which deals with vulnerable witnesses and managing the courtroom in that context. Relevantly the Principles state:

   Victims of family violence are often traumatised and vulnerable witnesses. To ensure parties are afforded fair and equal access to justice and those at risk of harm are not re–traumatised by the court process, it is essential that judicial officers and practitioners utilise the courts powers to achieve a fair hearing.[2]

   [1] Family Court of Australia, Family Violence Best Practice Principles 4th Edition, December 2016.

   [2] Ibid at page 17.

7. In the context of those Principles, I have noted that the witness has clearly been distressed during the course of the cross-examination. However, the mother’s allegations that she has been the subject of family violence are vigorously disputed by the father. 

8. The father, who has been in the courtroom during the course of the cross-examination of the mother, asserts and continues to provide instructions to his legal advisers, that: 

   a)the mother falsely asserts she sustained an injury to her fourth and fifth fingers of her left hand on the evening of 30 March 2015, and, similarly, that she falsely asserts she sustained an injury to her lip on that evening; 

   b)the mother falsely asserts she sustained those injuries as a result of actions of the father; 

   c)the mother falsely asserts that her daughter was present during the course of, or during a part of the course of the alleged events; and

   d)the mother falsely asserts that the mother has been informed by her daughter that the child was present on that evening and witnessed the alleged events.

9. The Court has power pursuant to section 69ZX of the Family Law Act 1975 (Cth) (“the Act”) to limit cross-examination. I acknowledge that during the course of the cross-examination, senior counsel for the mother has objected to some questions in respect of the content of those questions and, on other occasions, he has objected as a result of the repetition of those questions. 

10. Senior Counsel for the father has advised the Court that these issues are of significance and that there is a reasonable basis for his questioning of the mother. In those circumstances I have permitted the cross-examination to occur in a robust fashion.

11. The Court was yesterday informed by senior counsel for the father that the cross-examination of the mother would focus upon photographs of relevant rooms of the parties’ home where the alleged events occurred. Those photographs are being presented to the witness as an alternative to the Court attending a view of the premises in circumstances where I declined the request, made by senior counsel for the father, to conduct such a view.

12. Accordingly, while the concern raised by senior counsel for the mother is of significance, and in my view, has been appropriately raised, I intend to permit senior counsel for the father to continue with the cross-examination of the mother as foreshadowed.

13. For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 18 October 2017.

Associate:

Date:  27 October 2017