New legal representatives delay trial in complex family law matter involving allegations of family violence
Kabir & Kabir (No 3) [2002] FedCFamC1F 983 (12 December 2022)
The respondent seeks that the final hearing dates be vacated on the first day of trial. The instructing solicitor and counsel for the respondent have very recently come onto the record. The Court considered how legal representation is necessary in this matter because the parties are prohibited from personally cross-examining each other.
Facts
There were difficulties in securing representation for the mother in the proceedings. The parties were prohibited from personally cross-examining each other. Even if the case might have been able to be run otherwise than with legal representation in other circumstances, the absence of legal representatives would have meant that one or other of the parties would be unable to be cross-examined.
There are diametrically opposed factual positions. Although a short marriage, and a short relationship, it may be seen that there are many, many directly conflictual factual allegations put by the parties as observed through their affidavit material. Those run a broad spectrum of allegations of family violence made by each against the other, and by each against the other of manipulation of the Court processes, primarily through manipulation of family violence claims. It is a fact heavy case and a case of factual complexity, particularly given its potential interaction with previous findings by the Court in relation to a series of contraventions the subject of a judgment delivered on 10 August 2020.
In less than a week and a half prior to the listed commencement of the trial, Brightstone Legal took on the representation of the mother pursuant to a s 102NA grant. Mr Zhao, who appears to be a principal of Brightstone Legal Pty Ltd, advises the Court that he took on the matter on the basis that counsel would be able to be engaged, he, having secured the services of an experienced barrister, Mr Thomas of counsel. Mr Zhao advises that he was personally available for only the first three days of this week for the trial of the matter. Mr Thomas, before the Court, has indicated from an examination of the scope of the material in this case that he cannot consider himself to be adequately prepared for the case and should the case be called on, on that basis without adequate instructions and without the capacity to prepare the matter in the short time available, would consider himself bound to withdraw from the case.
Issue
Whether or not the Court should grant an application to vacate the trial date.
Applicable law
Family Law Act 1975 (Cth) s 102NA - if in proceedings under this Act: (a) a party (the examining party ) intends to cross-examine another party (the witness party ); and (c) any of the following are satisfied: (i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party; (ii) a family violence order(other than an interim order) applies to both parties; (iii) an injunction under section 68B or114 for the personal protection of either party is directed against the other party; (iv) the court makes an order that the requirements of subsection (2) are to apply to the cross-examination; then the examining party must not cross-examine the witness party personally and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
Analysis
These are matters that should not be left to lie. However, they can only be dealt with in a procedurally fair context, and that procedurally fair context, in this instance, dictates that there be proper representation for both of the parties. While the possibility of Mr Zhao running the matter was entertained, after hearing from Mr Zhao, the Court gathered that he is not in a position either to conduct the matter nor for the matter to be restricted to the three days for which he is available this week.
Conclusion
this matter is listed to trial for commence at 10.00 am for a period of four days on 11 April 2023. The Registry should arrange for an interpreter to be available on each of the days.
