This is a sample (posted 21 November 2023) of “Latest Notable Cases”, which is posted monthly with live links for members at the Members’ Home Page under Members’ Practice News. Also available at our Members’ Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members’ Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.
Children – Trial judge unnecessarily interrupted and curtailed cross examination via a “five minute warning” to counsel – Unfounded and unfair findings as to family violence
In Edinger & Duy [2023] FedCFamC1A 194 (10 November 2023) the Full Court (Aldridge, Schonell & Carter JJ) heard a father’s appeal from parenting orders for a child (born in 2015) to spend no time with him [2].
The parties separated on 31 August 2020 after an 8 year marriage. Both parties alleged serious family violence by the other. Interim orders had firstly provided for paternal time to be supervised but later provided for unsupervised overnight time [12]. The mother alleged that the child witnessed sexual activity in the father’s house, was subject to sexual abuse by the father’s girlfriend as well as physical abuse, and neglect by the father and paternal grandfather [13].
The trial judge found that the least detrimental outcome for the child was to remain in the mother’s care and spend no time with the father [19]. The father appealed, arguing he was denied procedural fairness due to the manner that the trial judge conducted the proceedings [5].
The Full Court said (from [24]):
“It was submitted that the proceedings were ‘characterised by the regular … interference by the Trial Judge’ and that the transcript demonstrated few pages where the primary judge did not correct counsel or a witness, disallow a question, interrupt cross-examination, or raise an issue with counsel …
( … )
[27] … [I]n this hearing there was a significant departure from that permitted for proper trial management such as to give rise to a miscarriage of justice. The interventions were excessive, including needlessly interrupting the flow of the evidence and cross-examination of witnesses … Many of those interventions were lengthy, with the primary judge putting multiple questions to witnesses that went well beyond clarification.
( … )
[32] The father submitted the primary judge denied counsel the opportunity to test the mother in any meaningful way on her allegations of family violence. He said in the circumstances, it was unfair for the primary judge to have made the findings she did in relation to family violence.
( … )
[49] Section 69ZX(2)(d) of the Act sets out that the court’s general duties and powers relating to evidence includes permitting the court to give directions limiting the time for the giving of evidence. That must … be tempered by the primary duty of a judge, namely to ensure a fair hearing – which will be undermined by arbitrary time limits or unreasonable restrictions that, as here, compromise the integrity of the hearing.
[50] … [I]t was procedurally unfair and unreasonable for [the father’s] counsel to be given … a five minute warning when a significant part of the evidence regarding family violence had not yet been put to the [mother]. That is particularly problematic in circumstances where it is readily apparent from the reasons that the mother’s experiences of family violence were central to the Court’s determination.
[51] … [T]he primary judge identified the lack of cross-examination on many aspects of the mother’s allegations regarding family violence as relevant to her fact-finding process. It was not a topic that counsel overlooked or made a forensic decision not to cover in cross-examination. It was a matter identified by the primary judge in her reasons as being of fundamental importance. Yet she permitted only about 20 minutes in total for counsel for the father to complete his cross-examination on the topic – during which time the primary judge continued to interrupt counsel.”
Considering the evidence of the Family Report Writer, the Full Court continued (from [69]):
“ … [T]he Family Report Writer reversed her recommendations after being asked a series of questions put to her solely by the primary judge, in which the Family Report Writer was repeatedly asked whether her recommendation had changed in response to the matters that were so put.
( … )
[71] We cannot discount the risk that the concession made by the Family Report Writer was a consequence of the primary judge’s questions which put inappropriate pressure on the expert. As a result, the integrity of the expert’s evidence was impugned, and consequently, the entire process.”
The appeal was allowed, the orders set aside and the proceedings were remitted for rehearing. Costs certificates were granted.
Our latest notable cases this month also include summaries of cases that involve the following:
Property – Court’s dismissal of summary judgment application upheld –Fraudulent transfers of the husband could be set aside pursuant to s 106B to increase the property vested in the husband’s trustee in bankruptcy
Children – Order for relocation failed to follow statutory requirements – Finding that relocation was in the best interests of the children prior to consideration of ss 65DAA and 60CC(3) in error
Property – Arbitration – Ordinary principles of procedural fairness apply to arbitrations – Orders made by arbitrator did not contemplate capital gains tax – Husband’s failure to adduce evidence as to capital gains tax did not relieve the arbitrator from making orders that were just and equitable – Arbitrator can make an order pursuant to s 106B
Property – Court lacked jurisdiction to hear non-federal aspects of justiciable dispute between husband and his former business associate – No common substratum of facts between matrimonial cause and husband’s civil suits
Maintenance – Where husband’s Affidavit was 92 pages and filed less than 48 hours prior to enforcement hearing, the Court’s refusal to allow wife to rely upon further affidavit was procedurally unfair – Husband’s unemployment insufficient to warrant variation of maintenance orders as his sporadic employment was considered when maintenance orders were made
Procedure – Duty of formality before the Court – Correspondence from Law clerk to the Court was “informal and presumptuous” – Inappropriate for non-legal staff to make substantive representations or seek orders in written communication with the Court
