Seares and Seares

[2020] FamCA 216

FAMILY COURT OF AUSTRALIA

SEARES & SEARES [2020] FamCA 216

FAMILY LAW – PRACTICE AND PROCEDURE – Section 102NA prohibition on cross-examination – Where the matter was set down in November 2019 for a three day trial, commencing in March 2020 – Where the father is self-represented and section 102NA applies such that he is prohibited from cross-examining the mother – Where the father will not have legal representation for the trial as the funding provided to Legal Aid to provide legal representation to litigants who are prohibited from conducting their own cross-examination pursuant to section 102NA has been exhausted – Where the trial cannot proceed as rules of procedural fairness and natural justice demand that a party has a right to cross-examine a witness giving evidence for the other side – Where the Court has no other option but to vacate the forthcoming trial dates and to adjourn the matter back to the Registry to be listed for trial again on a date to be fixed when the Court knows that the father will have legal representation.

Family Law Act 1975 (Cth)

APPLICANT: Mr Seares

RESPONDENT: Ms Seares

INDEPENDENT CHILDREN’S LAWYER: Justine Lilley

FILE NUMBER: BRC 5047 of 2016

DATE DELIVERED: 26 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 February 2020

REPRESENTATION

THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT:

Mr Healy
Hartley Healy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lilley

Legal Aid Queensland

Orders

1. That the trial listed for three days commencing 16 March 2020 be vacated and adjourned for hearing on a date to be fixed. 

2. That there be liberty to apply.

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 Seares & Seares 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 BRISBANE

FILE NUMBER: BRC 5047 of 2016

Mr Seares

Applicant

And

Ms Seares

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was commenced by the mother in the Federal Circuit Court in August of 2016. It made its way up the pending cases list in that Court until listed for trial, through the Case Management Pilot that was running in that Court at the time, on 11 December 2018. On that day, for reasons that are not clear to me, before the trial commenced it was transferred by a Judge of that Court to this Court.

2. In this Court, it worked its way up the pending cases list until I took it into my docket and listed it for a trial management event in November 2019. At that trial management event, it became clear that it is a matter to which s 102NA of the Family Law Act 1975 applies.

3. That section was included in the Family Law Act by amending legislation introduced into the Australian Parliament by the Federal Government in 2018. It was passed and became law, with a very significant prohibition impacting upon the way in which trials in Courts with family law jurisdiction are conducted, coming into operation from September last year, 2019.

4. In short, s 102NA prohibits the cross-examination of a witness personally by a former partner where there is an allegation of family violence between them and either party has been charged with or convicted of an offence involving violence or a threat of violence to the other party, or where a final family violence order applies as between both parties.

5. In such circumstances, s 102NA mandates that the cross-examination must be conducted by a legal practitioner acting on behalf of the cross-examining party. In this respect, as a judge presiding over trials in this Court I have no discretion otherwise to allow it. The law is plain, clear and certain.

6. It is also plain and clear, in my considered judgment, that where a party wishes to cross-examine a witness and does not have a lawyer acting on his or her behalf, and the s 102NA prohibition applies, the trial simply cannot proceed, as rules of procedural fairness and natural justice in the adversarial process by which trials in this Court are conducted simply demand that a party has a right to cross-examine a witness giving evidence for the other side.

7. Before the prohibition became operative, the Government made arrangements with the various Legal Aid Offices throughout Australia to provide funding for a stand-alone scheme by which legal representatives would be provided to parties to whom the s 102NA prohibition applies and paid for with that special funding. With that scheme in place, trials impacted by the prohibition began to be listed for hearings in this Court and the Federal Circuit Court.

8. Late last year, the Brisbane trial judges of this Court were notified by the Legal Aid Office of Queensland that the funding that had been provided to it by the Federal Government to fund the stand alone scheme for the 2019-2020 financial year had all run out and that no more legal representatives could be provided for parties to whom the prohibition applied unless the Federal Government made more funds available. Soon after, the trial judges were advised that some further funding had been made available.

9. At the trial management event in respect of this matter, that took place in November 2019, it became clear that this matter was a matter to which the prohibition applies. Believing that the scheme was funded, I made orders for the Legal Aid Office to be notified that this was such a matter and for the father to make application to the scheme for funding to be provided with a legal representative who would act on his behalf and conduct the cross-examination of the mother, who has her own private legal representation.

10. I listed the matter for a three day trial in my Court commencing on 16 March 2020.

11. In the middle of last week, the Court received notice from Legal Aid Queensland that the additional funding provided by the Federal Government for the scheme had again run out and that there are no funds available to provide legal representation for the father in this matter. I was told that the father had also been informed of this.

12. Accordingly, I listed the matter for mention this morning to determine if the father will otherwise have legal representation for the trial.

13. He told the Court that he will not. He said that he cannot afford to.

14. Unfortunately, in my considered judgment, that leaves the Court with no option other than to vacate the forthcoming trial dates and to adjourn the matter back to the Registry to be listed for trial again on a date to be fixed, when the Court knows that the father will have legal representation. I sincerely regret having to do this. I appreciate the distress it will cause the parties who have already been waiting for finalisation of their matter through the two family law courts for three and a half years. However, as I have said, the combination of the legislative prohibition and the absence of funding for the scheme leaves me with absolutely no alternative.

15. I also observe that I have been informed by my trial judge colleagues in Brisbane that they have had to take the same steps in trials listed before them. I have also been informed by administrative staff in the Brisbane Registry that more than five listed trials in the Family Court and more than thirty listed trials in the Federal Circuit Court have been directly impacted in this way by notice from Legal Aid Queensland that funding under the scheme is not available for parties to whom the prohibition applies. This is a significant crisis that will only get substantially worse very quickly without an amendment to the legislation or the immediate provision of adequate funding for the scheme to operate effectively as it was intended.

16. In the circumstances, I order that the trial listed for three days from 16 March 2020 be vacated and adjourn the matter for hearing on a date to be fixed. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 February 2020.

Associate:

Date:  26 February 2020