SANTER & SANTER

[2020] FamCA 444

FAMILY COURT OF AUSTRALIA

SANTER & SANTER [2020] FamCA 444

FAMILY LAW – PRACTICE AND PROCEDURE – Application of s102NA – where the mother is self-represented – where there has previously been a final intervention order in place for the protection of the father and the mother has been found to have breached that order – where discretion is exercised and an order for the ban on personal cross-examination is made – where orders are made for the father to take the children to the appointment with the family consultant for an updated family report after the mother tried to cancel the appointment

Family Law Act 1975 (Cth) ss 102NA, 62G
Family Law Rules 2004 (Cth)

APPLICANT: Ms Santer

RESPONDENT: Mr Santer

FILE NUMBER: MLC 6062 of 2018

DATE DELIVERED: 14 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 February 2020

REPRESENTATION

THE APPLICANT: In Person via telephone

COUNSEL FOR THE RESPONDENT: Ms Bryan

SOLICITOR FOR THE RESPONDENT: Resolve Conflict Lawyers

Orders

IT IS ORDERED THAT

1. To enable the Husband and the children, X born … 2009 and Y born … 2012 ("the children"), to attend upon Mr B, psychologist, on Monday 17 February 2020 for the purposes of an updated family report, the children spend time with the Husband from 4pm Sunday 16 February 2020 until following the report on Monday 17 February 2020.

2. To give effect to paragraph 1 herein, paragraph 2 of the Orders dated 18 September 2018 be suspended and recommence thereafter as if the suspension had not occurred.

3. That changeover occur on Sunday 16 February 2020 and Monday 17 February 2020 at a location in C Town unless the children are returned to their school on Monday 17 February 2020.

4. By no later than 4pm Friday 21 February 2020, the Mother is to file a Notice of Address for Service of her new practitioner or notify the chambers of Justice Macmillan if she intends to proceed unrepresented.

IT IS FURTHER ORDERED THAT

1. The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.

AND THE COURT NOTES

A.That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 10 September 2019;

B.That the parties have each been advised by the Court:-

(a)That pursuant to those requirements, neither party may cross-examine the other party personally;

(b)That 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;

(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 Santer & Santer 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 MELBOURNE

FILE NUMBER: MLC 6062 of 2018

Ms Santer

Applicant

And

Mr Santer

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for mention before me today on short notice and I note that although an email was sent to the mother’s email address advising her of the hearing, she says she was unaware of the fact that it was listed for mention until she was contacted by my associate by telephone at the commencement of the hearing. 

2. On the 21^st of October 2019, I made orders setting the matter down for a final hearing as a four-day matter, commencing on 30 March 2020. I also ordered that, pursuant to s 62(G)(2) of the Family Law Act 1975 (Cth) (“the Act”), the parties and the children attend upon Mr B for the preparation of an updated family report, to be completed and released by 6 March 2020. Appointments have been made for the parties to attend on Monday, 17 February 2020.

3. The matter was listed for mention before me at short notice when the father’s solicitors were advised by F Lawyers, the wife’s former solicitors, by letter dated 11 February 2020 that they no longer had instructions to act on behalf of the mother. The father’s solicitor thereafter wrote, I assume by email, to the mother requesting her advice as to whether she had new lawyers acting on her behalf. When they did not receive a reply, they contacted Mr B’s rooms to confirm the appointments and were advised that the mother had contacted his rooms with a view to cancelling the appointments on Monday.  The mother confirmed that to be the case.

4. There are two issues before me today.  The first is in relation to the father’s concern that the mother will not take the children to the appointment with Mr B on Monday, 17^th February 2020.  Although the mother has promised me that she will take the children to the appointment on Monday, I certainly have concerns that she might not.  These appointments are difficult to obtain and it could be many months before another appointment could be made if this appointment is not kept. 

5. The mother says that she has found these proceedings very distressing.  She said that they had caused enormous stress for her, her mother and the children, and that she wanted me to “set her free.” She also referred to the pressure being too great and said that she is not able to go on.   

6. The stress the mother is says she is experiencing highlights in my view, the importance of the children attending upon Mr B. I urged the mother to also attend upon Mr B, because we have a date for a final hearing and that is the means by which this matter can be brought to a conclusion. The stress that the mother says she is experiencing can then, hopefully, be resolved. To not attend upon Mr B would only delay the finalisation of this matter. There is an obligation placed upon the court pursuant to the Family Law Rules 2004 (Cth), to resolve matters in a timely manner. In addition there are also the principles that guide the Court in parenting proceedings and it certainly would appear that the parties in this case and, most likely, the children would benefit from having this matter concluded.

7. Despite the mother’s promises, I have reservations about whether or not she will take the children, so in order to ensure that at least the children and the father are seen by Mr B, I propose to accede to the father’s application.  He is in any event, seeing his children, the only difference being that, instead of the children seeing him from after school on Tuesday until the next day, he will be now seeing them late Sunday until the conclusion of the appointments with Mr B.  It is not a significant issue in my view with respect to their welfare and to the contrary, it will hopefully allow these proceedings to be concluded, which I am satisfied is in their best interests.

8. The other issue the court must deal with arises in circumstances where counsel for the father has sought an order that the mother file a Notice of Address for Service of her new practitioner, or notify my chambers in the event that she intends to represent herself. If the mother is not represented, issues may arise with respect to s 102NA(2) of the Act. This is in circumstances where, although there is not presently a final intervention order against the mother, there has been a final intervention order made on the 3^rd of July 2018 which lasted until 2^nd July 2019, and the father has now filed an application seeking to extend that order.  That application was filed on the 17^th of June 2019.

9. Significantly in this case the mother faced charges for damaging property.  Those charges were found proved and she was fined $400.  There have also been two breaches of the intervention order, one in November 2018 and a second breach in June 2019, both of which were similarly found proven.  In my view, whilst it is not mandatory, I have a discretion to ban personal cross-examination even if there are no extant final family violence orders, which would appear to be the situation in this case. 

10. The circumstances of this case are such that I do consider that I should exercise my discretion and make an order pursuant to s 102NA(2) of the Act with respect to any cross-examination in these proceedings. What that means is that if the mother is going to be represented it will not be an issue, but if she is intending to represent herself, she will need to approach Legal Aid with a view to obtaining a grant of aid for representation for the purposes of the hearing in March. I consider it would be most unfortunate if the matter could not proceed. I do not want to delay the making of that decision. It seems to me the circumstances are clear and there should be personal cross-examination ban in this case. I am going to require the mother to file the Notice of Address for Service, but I am also going to make the orders and the notations with respect to s 102NA(2) of the Act in the event that she does not engage solicitors to act on her behalf.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 February 2020.

Associate: 

Date:  14 February 2020