By and -

Key decisions

  • Edinger & Duy [2023] FedCFamC1A 194
  • Akbar & Gandega [2023] FedCFamC1A 174
  • Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949
  • Vida [2023] FedCFamC1A 175


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 (at [1]).

The mother alleged the child witnessed sexual activity in the father’s house, was subjected to sexual abuse by the father’s girlfriend, and neglect by the father and paternal grandfather (at [13]).

The trial judge found the least detrimental outcome for the child was to remain in the mother’s care and spend no time with the father (at [19]). The father appealed, arguing he was denied procedural fairness (at [5]).

The Full Court said (from [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 …

[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 …

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