FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Peynirci & Agani [2024] FedCFamC1F 27
File number(s): BRC 1479 of 2022 Judgment of: HOGAN J Date of judgment: 25 January 2024 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) Act 2018 (Cth)
Cases cited: Hurley v Melton (No 2) (2020) 61 Fam LR 405; [2020] FamCA 917 Division: First Instance Number of paragraphs: 4 Date of hearing: 25 January 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: M.A. Kent & Associates Solicitor for the Independent Children's Lawyer: VM Family Law ORDERS
BRC 1479 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEYNIRCI
Applicant
AND: MS AGANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
25 JANUARY 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 Act are to apply to the cross-examination of each of the parties in these proceedings.
2.The Independent Children’s Lawyer has leave for Ms B, Court Child Expert, to give evidence and be cross-examined by video-link through Microsoft Teams at the final hearing of this matter.
3.Such leave is conditional upon Ms B being informed that she is:
(a)to be in a private place when she is called to give evidence; and
(b)to have with her a copy of her affidavit/s or report/s; and
(c)to have with her any notes that maybe in her possession that relate to the proceedings; and
(d)have available to her a method by which she can receive, electronically, any documentation that any party may wish her to be shown during the course of cross-examination.
4.The time for compliance with Order 8 of the Order made on 30 November 2023 is extended such that by 4.00 pm on 9 February 2024, each party file and serve any affidavit material on which they intend to rely at the final hearing.
5.The matter is listed for a pre-trial case management hearing at 9:15 am on 20 February 2024, with the hearing to be conducted by telephone.
IT IS NOTED THAT:
A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies, 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 …@...; and
(iv)a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said Scheme in Queensland.
B.The Court respectfully requests…
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CaseChat Overview and Summary
The court examined the statutory provisions under s 102NA of the Family Law Act 1975 (Cth) and concluded that the requirements of s 102NA(2) should indeed apply to the cross-examination of both parties. This was deemed necessary to ensure a fair and just examination of the evidence in the proceedings. The court granted leave for the Independent Children’s Lawyer to call Ms B as an expert witness, but stipulated that this testimony must be given via video-link through Microsoft Teams. The court emphasised that Ms B must be in a private place, have all relevant documents and notes at hand, and be equipped to receive any documentation electronically during the cross-examination. Furthermore, the court extended the time for filing affidavit material and scheduled a pre-trial case management hearing to ensure that all procedural matters were adequately addressed before the final hearing.
The court's orders included the application of specific procedural requirements to the cross-examination of both parties, permission for the Independent Children’s Lawyer to call Ms B as an expert witness via video-link, and an extension of the deadline for filing affidavit material. These measures were intended to facilitate a thorough and fair examination of the evidence in the proceedings. The matter was scheduled for a pre-trial case management hearing to ensure all procedural aspects were properly managed.
In conclusion, the court's orders addressed the procedural requirements for the cross-examination of the parties and the expert witness, extended the time for filing affidavits, and set a date for a pre-trial case management hearing. These decisions aimed to ensure a fair and efficient process leading up to the final hearing.
Orders
Orders of the court
BRC 1479 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR PEYNIRCI
Applicant
AND:
MS AGANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
25 JANUARY 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 Act are to apply to the cross-examination of each of the parties in these proceedings.
2. The Independent Children’s Lawyer has leave for Ms B, Court Child Expert, to give evidence and be cross-examined by video-link through Microsoft Teams at the final hearing of this matter.
3. Such leave is conditional upon Ms B being informed that she is:
(a) to be in a private place when she is called to give evidence; and
(b) to have with her a copy of her affidavit/s or report/s; and
(c) to have with her any notes that maybe in her possession that relate to the proceedings; and
(d) have available to her a method by which she can receive, electronically, any documentation that any party may wish her to be shown during the course of cross-examination.
4. The time for compliance with Order 8 of the Order made on 30 November 2023 is extended such that by 4.00 pm on 9 February 2024, each party file and serve any affidavit material on which they intend to rely at the final hearing.
5. The matter is listed for a pre-trial case management hearing at 9:15 am on 20 February 2024, with the hearing to be conducted by telephone.
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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