SCRITTON & JAVINS

[2020] FamCA 316

FAMILY COURT OF AUSTRALIA

SCRITTON & JAVINS [2020] FamCA 316

FAMILY LAW – PRACTICE AND PROCEDURE – Ban on Cross-Examination – s 102NA(1)(c)(iv) – Interim Proceedings

Family Law Act 1975 (Cth) s 102NA(2)

APPLICANT: Mr Scritton

RESPONDENT: Ms Javins

INTERVENOR: Director-General Community Services Directorate

INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

FILE NUMBER: CAC 1607 of 2019

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

SOLICITOR FOR THE INTERVENOR: Community Services Directorate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

IT IS ORDERED THAT

1. Section 102NA(2) applies to the conduct of these proceedings.

IT IS NOTED THAT

1. The matter will shortly proceed to an interim determination of international relocation.  It will be necessary for the Father to promptly contact the Legal Aid Commission in respect of the allocation of a lawyer for the preparation of that matter.

IT IS FURTHER ORDERED THAT

1. The matters are adjourned for interim determination of the interim international relocation application to 10 am on 19 May 2020 and it is noted that each of the parties and other witnesses may be required for cross-examination on that occasion.

2. The Father is to file and serve all material that he intends to rely upon in support of his application by 4 pm on 7 May 2020.

3. The Mother is to file and serve a single consolidated affidavit from herself and each witness she intends to rely upon by 4 pm on 14 May 2020.

4. The Director-General is to file and serve any evidential material the Director-General intends to rely upon by 4 pm on 14 May 2020.

IT IS NOTED THAT

1. On a tentative basis the Director-General expresses the view that the position taken by the Director-General be for the children to remain living with the Father and therefore, if necessary, to relocate on an interim basis to the United Kingdom with the Father.

IT IS FURTHER ORDERED THAT

1. The parties are granted leave to exercise photocopy or electronic access to material produced pursuant to subpoena or s 69ZW order on the basis that the electronic or hard copy is destroyed at the end of the relevant appeal period. 

2. A party may, on notice to each of the other parties, seek the urgent relisting of this matter should there be a matter that arises which prejudices its proper hearing on 19 May 2020.

3. In relation to the s 69ZW material and any material obtained on subpoena the parties are prohibited from using such material for any purpose other than these proceedings without first obtaining the permission of the Court.

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 Scritton & Javins 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 CANBERRA

FILE NUMBER: CAC 1607 of 2019

Mr Scritton

Applicant

And

Ms Javins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings occur both in an interim and final context in the context of Mr Scritton being a citizen of the United Kingdom (the “UK”).  His case is that the children, the subject of the relationship, are also entitled to passports and citizenship with the UK.  Mr Scritton has adduced some evidence to indicate that he is likely to receive some support from the High Commission of the UK to facilitate him being able to travel with the children to the UK to live either temporarily or permanently in the UK. 

2. This occurs against a backdrop where he alleges significant deficiencies in the Mother's capacity to participate in and care for the children due, amongst other allegations, to a purported ice addiction. 

3. The nature of those circumstances means that it is necessary to determine at least on an interim basis whether or not an order should be made which would permit the Father to relocate with the children to the UK, noting that there are particular practical difficulties in place at present due to the COVID-19 crisis.

4. The particular characteristics of that application mean that even though it is an application at this stage by way of interim orders it may be anticipated that it will be necessary for the parties to be cross-examined, at least to a limited extent, to establish whether the interim orders should be made. That brings into play at an earlier stage in the proceedings than would otherwise be the case the provisions of s 102NA of the Family Law Act 1975. 

5. Those provisions deal with mandatory protection for parties in certain cases involving family violence. This is a case which does not attract the mandatory application of s 102NA as set out in s 102NA(1)(c)(i), (ii) and (iii) but may attract the application by subsection (iv) should I make an order that the requirements of the subsection apply to cross-examination.

6. The Father has said in this case he is content to operate under the ban or outside the ban.  The solicitor for the Mother has said it is a matter for the Court whether or not the discretion should be exercised.  However the discretion is supported by both the Independent Children’s Lawyer and the Director-General. 

7. There are compelling reasons to apply on a discretionary basis the ban in this instance.  There is firstly the fact of the Mother being the subject of a criminal conviction in relation to property damage occurring in the context of an altercation between the parties.  While that does not fall strictly within paragraph (i) it falls only a short way outside of the matters contained in paragraph (i). 

8. It is also the case where I am informed there have been various interim family violence orders were in place which again, although they do not fit within subparagraph (ii) fall not far outside (noting that subsection (ii) specifically excludes interim orders). 

9. There is no injunction under s 68B or s 114 of the Family Law Act, however a brief perusal of the primary affidavit material that was relied upon by the Mother as the matter progressed to a final hearing for December of last year, noting the final hearing did not take place because the parties settled their position in relation to the children, outlines a litany of serious allegations of family violence levelled against the Father. 

10. At this stage it is premature to make any finding in relation to those matters but the matters are of such intensity and volume as to call into play the exercise of the discretion under s 102NA as being important for the protection of the integrity of the evidence in the proceedings and important for the protection of each of the parties in the proceedings.

11. Accordingly, I will direct the application of the provisions to these proceedings.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 April 2020.

Associate: 

Date:  1 May 2020