Velic & Velic - [2023] FedCFamC2F 824

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Velic & Velic [2023] FedCFamC2F 824

File number(s): ADC 3671 of 2019

Judgment of: JUDGE MCGINN

Date of judgment: 15 June 2023

Catchwords: FAMILY LAW – interim application – section 10NA – self represented parties – discretion – section 102NA(1)(c) – no order made

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
Owen & Owen [2020] FamCA 90

Neil & Zang [2021] FamCAFC 30

Division: Division 2 Family Law

Number of paragraphs: 17

Date of hearing: 14 June 2023

Place: Adelaide

Applicant: No appearance

Respondent: Self-represented

Independent Children's Lawyer: No appearance
ORDERS

ADC 3671 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VELIC

Applicant

AND:
MR VELIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MCGINN

DATE OF ORDER:

14 JUNE 2023

IT IS ORDERED:
1.That upon the relisting of this matter at the request of the Independent Children's Lawyer for orders pursuant to section 102NA it is determined that section 102NA does not apply to these proceedings.
2.This matter remains listed for trial on 25 July 2023.

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 a pseudonym Velic & Velic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore)
JUDGE McGINN

These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This matter was listed before the Court on 13 April 2023 in respect of a request on behalf of the Independent Children's Lawyer as to whether section 102NA of the Family Law Act 1975 (Cth) (the ‘Act’) may be applicable to the circumstance of this case.
For the reasons that follow, I have determined that section 102NA does not apply to these proceedings.
It ultimately turned out that the Independent Children's Lawyer had the matter relisted on account of there being a possibility that section 102NA applied given that Lawyer’s view that the general and vague assertions in relation to family violence might otherwise justify the making of an order pursuant to section 102NA(1)(c)(iv) in circumstances where both of the parties are without legal representation.
Whilst each of the parties and the Independent Children's Lawyer agree that there are allegations of family violence between…

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.

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Details

AGLC: Velic & Velic [2023] FedCFamC2F 824
Case: [2023] FedCFamC2F 824
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 2, the case of Velic & Velic involved an interim application regarding the applicability of section 102NA of the Family Law Act 1975 (Cth). Both parties were self-represented, and the matter was relisted at the request of the Independent Children's Lawyer to determine whether the provisions of section 102NA were applicable to the proceedings. The key legal issue before the Court was whether the criteria for invoking section 102NA were satisfied, particularly under subsection 102NA(1)(c)(iv), given the allegations of family violence between the parties.

The Court, Judge McGinn, meticulously examined the evidence and submissions from the parties and the Independent Children's Lawyer. It noted that while there were allegations of family violence, no concrete evidence was presented to satisfy any of the specific criteria outlined in subsections 102NA(1)(c)(i), (ii), or (iii). The Court also highlighted that section 102NA is intended to protect victims of family violence from the anxiety of directly confronting their abusers in court, rather than serving as a means for self-represented litigants to obtain legal aid. Consequently, the Court determined that it was not satisfied that the discretionary provision under subsection 102NA(1)(c)(iv) should be invoked in this case.

The Court further directed the mother to file an affidavit substantiating the claim that the father had been charged with stalking, with a deadline of five days from the hearing date. However, no such affidavit was filed, thus no reconsideration was necessary. The matter was subsequently relisted for trial on 25 July 2023, and the Court reminded the parties and the Independent Children’s Lawyer of the outstanding orders for the filing of affidavit material.

Orders