Father Seeks Legal Aid for Family Violence Cross-Examination in Family Law Case
Ritchie & Ritchie [2022] FedCFamC1F 922 (23 November 2022)
The court is dealing with a family law case where the applicant father is asking for a legal practitioner to handle cross-examination due to allegations of family violence. The mother, Independent Children's Lawyer, and father support the court applying the requirements of section 102NA(2) of the Family Law Act 1975. The court references previous decisions and notes the goal of the legislation is to protect family violence victims from re-traumatization and imbalanced power during cross-examination.
Facts:
The matter before the court is about the cross-examination of a witness in a family law case. The applicant father has requested legal aid for a legal practitioner to handle the cross-examination, given that the case involves allegations of family violence. The mother and the Independent Children's Lawyer are appearing through legal representation, while the father is appearing in person. After speaking with the duty solicitor, the father supports the court's discretion to make an order under section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) that the requirements of subsection (2) be applied to his intended cross-examination of the mother.
The mother and the Independent Children's Lawyer also support the making of the order. The court cites previous decisions made by other judges in determining such applications and notes the purpose of the legislation is to protect victims of family violence from re-traumatization and power imbalances during cross-examination. The parents have each filed a Notice of Child Abuse, Family Violence or Risk, alleging that they and the child have experienced or are at risk of experiencing family violence and serious psychological harm.
Issue:
The father, who is appearing in person, requests legal aid for a legal practitioner to handle the cross-examination. The mother and the Independent Children's Lawyer support the making of an order under s 102NA(1)(c)(iv) of the Family Law Act to apply the requirements of subsection (2) to protect the victim from re-traumatization and power imbalances. The parents have filed notices of child abuse and family violence.
Applicable law:
Family Law Act 1975 (Cth) - provides that both parties are able to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for a lawyer by completing an application form. The Court will provide a copy of its orders to Legal Aid Queensland, who administers the scheme in Queensland.
Hurley v Melton (No 2) (2020) 61 Fam LR 405; [2020] FamCA 917 - provides that neither party can personally cross-examine the other and cross-examination must be conducted by a legal practitioner.
Analysis:
The judge accepts the submissions made by both Mr Ritchie and Ms Eastwood on behalf of the mother in support of applying the requirements of section 102NA(2) of the Family Law Act 1975 (Cth) in the cross-examination. The judge takes into account the fact that allegations of family violence have been made in multiple proceedings, including the Hague Convention proceedings, the court proceedings, and the proceedings in the Queensland Magistrates Court. The judge concludes that it is appropriate to make an order for the requirements of s 102NA(2) to apply and includes notations in the order to assist Mr Ritchie in accessing Legal Aid Queensland and requests that Legal Aid Queensland give priority to Mr Ritchie's application for a legal practitioner.
Conclusion:
The requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings. The court has ruled that neither party may personally cross-examine the other and any cross-examination must be conducted by a legal practitioner. The parties can apply for a lawyer through the Commonwealth Family Violence and Cross-Examination of Parties Scheme by filling out an application form. A copy of the court's orders will be given to Legal Aid Queensland, which manages the scheme in Queensland. The court requests that Legal Aid Queensland give high priority to the applicant father's request for a lawyer through the Commonwealth Family Violence and Cross-Examination of Parties Scheme, as the case has a final hearing scheduled for 3 days starting on March 15, 2023 and a compliance hearing on February 10, 2023.
Case: Ritchie & Ritchie [2022] FedCFamC1F 922
Judgment of: HOGAN J
Counsels:
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Ms Eastwood, Genuine Legal
Solicitor for the Independent Children's Lawyer: Ms Stewart, Stewart Family Law