SAFFORD & KELSO - [2021] FamCA 349

FAMILY COURT OF AUSTRALIA

SAFFORD & KELSO

[2021] FamCA 349

FAMILY LAW – CHILDREN – Family Violence – where the mother made allegations of family violence perpetrated by the father – where the father has been imprisoned for violence perpetrated against the mother – where the father no longer has legal representation – whether or not a section 102NA order should be made – whether or not father should be prevented from cross-examining the mother.

FAMILY LAW – CHILDREN – Adjournment application – where the father sought a long period of adjournment – where proceedings had been on foot for many years – where the mother and ICL oppose adjournment – adjournment application refused.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Mertens & Mertens [2016] FamCAFC 136
Aon Risk Services v Australian National University [2009] 239 CLR 175

APPLICANT:

Mr Safford

RESPONDENT:

Ms Kelso

INDEPENDENT CHILDREN’S LAWYER:

KS Family Lawyers

FILE NUMBER:

BRC

1970

2011

DATE DELIVERED:

19 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

19 May 2021

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Strong

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAYWER:

Ms Schuck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAYWER:

KS Family Lawyers

Orders

That the father have leave to make oral application for an adjournment of the hearing listed on 11 June 2021.
That the father’s oral application for an adjournment of the final hearing be dismissed.
The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.
That the respondent mother have leave to file by 4.00pm on 21 May 2021 a further amended response to Initiating Application.

AND THE COURT NOTES:-

A.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;
B.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 Victoria Legal Aid, which administers the said scheme.

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 Safford & Kelso 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…

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 SAFFORD & KELSO

Details

AGLC: SAFFORD & KELSO [2021] FamCA 349
Case: [2021] FamCA 349
Decision Date

CaseChat Overview and Summary

In *Safford & Kelso* [2021] FamCA 349, the Family Court of Australia considered applications made by the father, Mr Safford, in proceedings concerning parenting arrangements for the parties' child. The mother, Ms Kelso, alleged significant family violence perpetrated by the father, who had previously been incarcerated for assaults against her. The proceedings had been ongoing for several years, and the father's legal representation had recently ceased.

The court was required to determine two primary issues: whether to grant the father's application for a lengthy adjournment of the final hearing, and whether to make an order under section 102NA of the *Family Law Act 1975* (Cth) preventing the father from personally cross-examining the mother, given the history of family violence. The father sought an adjournment of 9 to 12 months, citing financial and emotional incapacity due to caring responsibilities for his unwell partner.

Justice Johns refused the father's adjournment application, noting the extensive delay already in the proceedings, the prejudice to the mother and child from further delay, and the father's history of non-compliance with court orders. The court applied the principles outlined in *Mertens & Mertens* [2016] FamCAFC 136 and Division 12A of the *Family Law Act 1975*, emphasising the need for timely resolution of child-related proceedings and the impact of litigation on children. Regarding the cross-examination issue, the court found that the criteria under section 102NA(1) were met, including the existence of a family violence order and allegations of family violence.

Consequently, the court ordered that the father must not personally cross-examine the mother, and any such cross-examination must be conducted by a legal practitioner. The father was advised of his entitlement to seek legal assistance through the Commonwealth Family Violence and Cross-Examination of Parties Scheme, administered by Victoria Legal Aid. The final hearing was to proceed as scheduled.

Orders