Vespermann & Vespermann - [2022] FedCFamC1F 157

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vespermann & Vespermann [2022] FedCFamC1F 157

File number(s): SYC 6052 of 2018

Judgment of: CAMPTON J

Date of judgment: 17 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where the father has recently become self-represented – Where none of the provisions in s 102NA(1)(c)(i),(ii), or (iii) apply – Where the discretion under s 102NA of the Act is engaged and ought to be exercised

Legislation: Family Law Act 1975 (Cth) s 102NA

Cases cited: Owen & Owen [2020] FamCA 90

Division: Division 1 First Instance

Number of paragraphs: 21

Date of hearing: 11 March 2022

Place: Sydney

Solicitor for the Applicant: Litigant in Person

Solicitor for the Respondent: Burke & Mangan

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 6052 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VESPERMANN

Applicant

AND:
MS VESPERMANN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

17 MARCH 2022

THE COURT ORDERS THAT:
1.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the applicant must not cross-examine the respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the applicant.
2.Within seven days of the date of these orders, the applicant complete the "Scheme Application Form" and provide that form to Legal Aid NSW (CrossExamScheme@legalaid.nsw.gov.au) for the allocation of a legal practitioner.

IT IS NOTED THAT
3.Pursuant to s 102NA(1), there is an allegation of family violence between the applicant and the respondent, and the Court has made an order that the requirements of subsection (2) are to apply to the cross-examination.
4.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)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)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.

5.If the applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.

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…

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 Vespermann & Vespermann

Details

AGLC: Vespermann & Vespermann [2022] FedCFamC1F 157
Case: [2022] FedCFamC1F 157
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 1, the case of Vespermann & Vespermann dealt with parenting proceedings concerning two children born in 2013 and 2017. The parents, who were married in the United States in 2006 and moved to Australia in 2008, separated on 9 June 2018. The mother, who had primary care of the children, sought to relocate to the USA, while the father proposed various parenting arrangements contingent on whether the children were to remain in Australia or relocate. The court was required to determine whether section 102NA of the Family Law Act 1975 (Cth) should apply to the proceedings, given the allegations of family violence and the father's recent decision to become self-represented.

The central legal issue was whether the discretionary provisions of section 102NA(1)(c)(iv) should apply to the proceedings, given that none of the mandatory provisions in subsections (i) to (iii) were satisfied. The court considered submissions from both parties and the Independent Children's Lawyer on the application of this section. The court held that the discretionary provision was engaged because of the allegations of family violence between the parties and the father's recent self-representation. The court determined that the purpose of section 102NA is to protect alleged victims of family violence from re-traumatisation and to ensure the integrity of their evidence. It was found that the allegations of family violence were serious and could not be considered clearly spurious. Therefore, the court concluded that the discretion under section 102NA should be exercised.

Consequently, the court made orders that neither party could cross-examine the other personally, and any cross-examination must be conducted by a legal practitioner. The father was required to complete the "Scheme Application Form" and apply to Legal Aid NSW for legal representation within seven days. If the father failed to comply with these orders, the matter would be relisted for further directions. The court's decision aimed to ensure the protection of the parties and the preservation of the integrity of the evidence in the proceedings.

Orders