Waugh & Rozon - [2024] FedCFamC1F 268

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Waugh & Rozon [2024] FedCFamC1F 268

File number(s): SYC 3879 of 2022

Judgment of: CURRAN J

Date of judgment: 3 April 2024

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Oral application by mother seeking that the father be removed from the court room while she gives evidence – Allegations of family violence – Capacity for the father to observe in another court room by audio-visual-link – Application granted – Oral application by father seeking the mother to remove her niqab during cross examination – Whether a niqab impacts the assessment of credibility – Where mother’s religious beliefs are on basis that she does not wish to expose her face to men – Where mother did not oppose the application if father was in a separate courtroom and a screen was put in place – Application granted – Screen put in place to block witness from the bar table

Cases cited:
ASIC v Rich [2004] NSWSC 467

Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898

KN v R [2017] NSWCCA 249

Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353

R v Chaarani [2018] VSC 387

R v Daniel Haile [2024] NSWSC 122

Division: Division 1 First Instance

Number of paragraphs: 30

Date of last submission/s: 3 April 2024

Date of hearing: 2 April 2024

Place: Sydney

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Gannon Family Law

Counsel for the Respondent: Ms Winfield

Solicitor for the Respondent: Choice Law Group

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers
ORDERS

SYC 3879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WAUGH

Applicant

AND:
MR ROZON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

3 APRIL 2024

THE COURT ORDERS THAT:
1.The mother’s oral application is granted.
2.The father’s oral application is granted.

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 Waugh & Rozon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
CURRAN J:

These reasons for judgment were delivered orally and have been corrected from the transcript.
APPLICATION FOR THE FATHER TO PARTICIPATE…

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 Waugh & Rozon

Details

AGLC: Waugh & Rozon [2024] FedCFamC1F 268
Case: [2024] FedCFamC1F 268
Decision Date: 3 April 2024

CaseChat Overview and Summary

The matter before the court involved an oral application by Ms Waugh, seeking the removal of Mr Rozon, the father, from the courtroom while she gave evidence. The application arose in the context of ongoing family law proceedings, which included allegations of family violence. The court was also called upon to determine whether Mr Rozon could observe Ms Waugh's evidence via audio-visual link in a separate courtroom. The second application concerned Mr Rozon's request for Ms Waugh to remove her niqab during cross-examination, given the impact it might have on the assessment of her credibility. Ms Waugh, however, was willing to comply with the request if Mr Rozon was in a separate courtroom and a screen was installed to prevent him from seeing her face. The court had to balance the parties' rights with the need for a fair trial and the importance of religious beliefs.

The court considered the implications of the father's presence in the courtroom during the mother's evidence, given the allegations of family violence. It was noted that the father's capacity to observe via audio-visual link would mitigate any potential distress to the mother while allowing him to participate in the proceedings. The court also evaluated the impact of the niqab on the witness's credibility, acknowledging Ms Waugh's religious beliefs and her reluctance to expose her face to men. The court found that the installation of a screen to block the bar table from Ms Waugh's view would address the father's concerns without infringing on the mother's religious practices. The court concluded that these measures would facilitate a fair and respectful trial environment.

In light of the above considerations, the court granted both applications. The father was allowed to observe the mother's evidence via audio-visual link in a separate courtroom, and a screen was installed to prevent him from seeing Ms Waugh's face during her testimony. These orders were designed to ensure that the trial proceeded fairly while respecting the parties' rights and beliefs. The court's decision provided a balanced approach to the complex issues presented, ensuring that the proceedings could continue without causing undue distress to the mother or compromising the integrity of the trial.

Orders

Orders of the court

SYC 3879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WAUGH

Applicant

AND:

MR ROZON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

3 APRIL 2024

THE COURT ORDERS THAT:

1. The mother’s oral application is granted.

2. The father’s oral application is granted.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 3879 of 2022
Judgment of:	CURRAN J
Date of judgment:	3 April 2024
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Oral application by mother seeking that the father be removed from the court room while she gives evidence – Allegations of family violence – Capacity for the father to observe in another court room by audio-visual-link – Application granted – Oral application by father seeking the mother to remove her niqab during cross examination – Whether a niqab impacts the assessment of credibility – Where mother’s religious beliefs are on basis that she does not wish to expose her face to men – Where mother did not oppose the application if father was in a separate courtroom and a screen was put in place – Application granted – Screen put in place to block witness from the bar table
Cases cited:	ASIC v Rich [2004] NSWSC 467 Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898 KN v R [2017] NSWCCA 249 Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353 R v Chaarani [2018] VSC 387 R v Daniel Haile [2024] NSWSC 122
Division:	Division 1 First Instance
Number of paragraphs:	30
Date of last submission/s:	3 April 2024
Date of hearing:	2 April 2024
Place:	Sydney
Counsel for the Applicant:	Ms Cantrall
Solicitor for the Applicant:	Gannon Family Law
Counsel for the Respondent:	Ms Winfield
Solicitor for the Respondent:	Choice Law Group
Counsel for the Independent Children's Lawyer:	Mr Hill
Solicitor for the Independent Children's Lawyer:	Farah Lawyers, Solicitors & Barristers

SYC 3879 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS WAUGH Applicant
AND:	MR ROZON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	3 APRIL 2024