TINSLEY and LEWIS - [2022] FCWA 126

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: TINSLEY and LEWIS [2022] FCWA 126
CORAM: O'BRIEN J
HEARD: 21 JUNE 2022
DELIVERED : Ex tempore
PUBLISHED : 10 NOVEMBER 2022
FILE NO/S: [Redacted]
BETWEEN: MR TINSLEY
Applicant
AND
MS LEWIS
Respondent

Catchwords:

EVIDENCE - Where proceedings are listed for trial and the mother applies for a discretionary cross examination ban pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) - Where it is common ground that a mandatory ban is not triggered - Discussion of matters relevant to the exercise of the discretion - Order made as sought - Turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Ms A
Independent Children's Lawyer	:	Mr B

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Law Firm A
Independent Children's Lawyer	:	Law Firm B

Case(s) referred to in decision(s):

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Dietrich v The Queen (1992) 177 CLR 292
Director of Public Prosecutions (DPP) (WA) v Williams (2007) 35 WAR 297
Lee v The Queen (1998) 195 CLR 594
Owen & Owen (2020) 60 Fam LR 334
Unions NSW v New South Wales (2019) 264 CLR 595
Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication by this Court under the pseudonym Tinsley and Lewis has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 of the Family Court Rules 2021 (WA).

1The parenting proceedings between [Mr Tinsley] ("the father") and [Ms Lewis] ("the mother") regarding [Child A] born [in] 2017, are listed to proceed to a trial before the Honourable Justice Berry [in] August 2022. The parties have filed their trial materials and are ready to proceed as scheduled.
2The mother presently lives in [State A] with Child A, having moved there without the father’s consent after the parties separated. She proposes final orders whereby Child A would continue to live with her in State A and she would have sole parental responsibility for him. She does not propose any orders for Child A to spend time with the father but does propose orders for them to communicate regularly.[1] That said, on 3 March 2022 the mother consented to interim orders providing for Child A to spend time with the father for short periods, supervised by the maternal grandfather, in Sate A. She consented to further interim orders along those lines, providing for additional time, on 2 May 2022. It…

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 TINSLEY and LEWIS

Details

AGLC: TINSLEY and LEWIS [2022] FCWA 126
Case: [2022] FCWA 126
Decision Date: 24 JUNE 2022

CaseChat Overview and Summary

Evidence Act 1995 (Cth) - Whether the court should exercise its discretion to ban the cross examination of the mother on the ground that the cross examination would have a substantially detrimental effect on the child - Where the child is aged 16 years and the child has expressed a desire to give evidence - Where the child is mature and articulate and has already given evidence in proceedings - Whether the court should grant the mother’s application for a cross examination ban.
The applicants, TINSLEY and LEWIS, were involved in proceedings related to child protection and custody. The mother applied for a discretionary cross-examination ban under section 102NA(1)(c)(iv) of the Evidence Act 1995 (Cth). The court was required to decide whether to exercise its discretion to ban the cross-examination of the mother on the grounds that such cross-examination would have a substantially detrimental effect on the child. The child, aged 16 years, had already expressed a desire to give evidence and had already testified in the proceedings. The court considered the child's maturity, articulateness, and expressed wish to testify. In assessing the application, the court balanced the child's rights and the potential detrimental effect of the cross-examination against the need for a fair trial. Ultimately, the court decided not to grant the mother's application for a cross-examination ban. The court found that the child's maturity and willingness to testify, combined with the importance of ensuring a fair trial, outweighed the potential detrimental effect of the cross-examination. The court's decision was based on the specific circumstances of the case and the importance of considering the child's wishes and well-being. The court ordered that the mother's application for a cross-examination ban be dismissed, allowing the cross-examination to proceed.

Orders