Swan & Swan
[2023] FedCFamC1F 610
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swan & Swan [2023] FedCFamC1F 610
File number(s): MLC 6388 of 2020 Judgment of: JOHNS J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – family violence – oral application for section 102NA order – where the mother makes serious allegations of family violence against the father – where no Family Violence Intervention Order is in place – order made pursuant to section 102NA(2)(c)(iv) Legislation: Family Law Act 1975 (Cth), ss 68B, 102NA(1), 102NA(2) & 114 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 13 July 2023 Place: Melbourne Solicitor for the Applicant: Buscombe Family Law Solicitor for the Respondent: Heinz Law Solicitor for the Independent Children's Lawyer: KS Family Lawyers ORDERS
MLC 6388 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SWAN
Applicant
AND: MR SWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross‑examination occurring in the proceedings.
2.The Court shall forthwith provide a copy of this order to Victoria Legal Aid to facilitate the father obtaining funding pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
3.Pursuant to section 69ZW of the Family Law Act 1975 (Cth) it is requested that the Department of Fairness, Families and Housing (Victoria) (“the Department”) provide to the Court by no later than 4.00 pm on 14 August 2023 documents, records and information in relation to the children X born 2014 and Y born 2017 including:
(a)any notifications to the Department of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;
(b)any assessments or investigations of the Department into notifications of the kind referred to in subparagraph (a) of this order and any findings or outcomes of such investigations, including but not limited to copies of investigation and assessment outcomes, any grounds of substantiation, case plans and case closure summaries;
(c)any reports commissioned by the Department in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court, as and from 22 July 2021 to date.
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;
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 in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swan & Swan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today upon a request made on behalf of the father. The matter is listed for a final hearing before me to commence on 21 August 2023.
The issues before the Court relate to future parenting arrangements in respect of the parties’ two children, X, who is aged nine years, and Y, who is aged six years. The matter has been classified as a Magellan matter as a result of serious allegations raised by the mother against the father in relation to his conduct towards the children.
Until recently, the father was represented by a Solicitor. That position has changed. The father is no longer able to afford the costs associated with retaining a Solicitor or Counsel to represent him at the final hearing. Today, an oral application has been made for an order pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”) on the basis that the Court ought exercise its discretion to make such order. It is conceded on behalf of the father, properly, in my view, that the provisions of section 102NA(1)(c)(i), (ii) and (iii) are not applicable to this matter.
There is no current Family Violence Intervention Order in place, and there are no current criminal proceedings on foot. Similarly, there is no injunction against the father pursuant to either section 68B or section 114 of the Act.
It is submitted on behalf of the father that the mother raises very serious allegations of family violence against him in her trial affidavit filed 5 September 2022. It is alleged by the mother that the father has engaged in the following:-
·Controlling behaviour against her;
·That he has isolated her from members of her family;
·That he has perpetrated physical abuse against her, including kicking and pushing her; and
·That such abuse has, on occasion, occurred in the children’s presence.
It is also alleged by the mother that the father has forced her to have sex without her consent.
The allegations made by the mother in her trial affidavit material are denied by the father. It is anticipated that the father will seek to challenge the wife’s allegations as to his abusive, violent and anti-social behaviour in cross-examination during the trial. As a result, the father seeks an order pursuant to s 102NA of the Act.
The application made by the father is one that is supported by both the Solicitor for the mother and the Independent Children’s Lawyer. Indeed, it was submitted today on behalf of the mother that she continues to be fearful of the father.
Having regard to the evidence filed in the proceedings and the submissions made this day, I am satisfied that it is appropriate that there be an order pursuant to section 102NA(2) of the Act.
There are serious issues and allegations of family violence raised, and they are matters that will likely require cross-examination of both the mother and father, given the father’s denial of those allegations. These are issues that are central to the dispute between the parties, and are matters about which it will be necessary to hear evidence in the context of a determination as to what is in the children’s best interests regarding their future relationships with the mother and the father. Accordingly, I will make an order pursuant to section 102NA(2) of the Act.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 25 July 2023
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