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

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

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

IT IS NOTED THAT

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

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.
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.
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.
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

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

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.
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.
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

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 SCRITTON & JAVINS

Details

AGLC: SCRITTON & JAVINS [2020] FamCA 316
Case: [2020] FamCA 316
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of Scritton & Javins, Gill J of the Federal Court of Australia considered an application concerning the application of section 102NA(2) of the *Migration Act 1958* (Cth) to the proceedings. The precise nature of the dispute between the parties, Scritton and Javins, is not detailed, but the central issue revolved around the applicability of this specific legislative provision.

The primary legal question before the Court was whether section 102NA(2) of the *Migration Act 1958* (Cth) was to govern the conduct of the proceedings before it. This section, which deals with the admissibility of evidence in certain migration matters, was the focus of the Court's determination.

Gill J determined that section 102NA(2) did indeed apply to the proceedings. The Court's reasoning, as indicated by the orders made, was that the conditions for the application of this section were met in this instance. Consequently, the Court made an order to that effect.

Orders

Orders of the court

IT IS ORDERED THAT

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.