QLD Has he been mislead? Cross examination scheme

[AmandaB]

Hi

My partner has self represented in Court for the last 2 years.

At my partners last hearing, he was advised by the Judge that he may be eligible to apply for the Commonwealth Family Violence and Cross-Examination of Parties Scheme as his ex had put 2 x DVO's on him, plus he has been charged with a breach of the first. The most recent DVO expired late last year. We understand that he is not automatically eligible for Legal Aid funding for a solicitor and would therefore need to have private representation if a banning order was made.

The Judge at that time made a notation on the order that he may be eligible and he was advised to ask at the next hearing, where it was to be set down for trial, for a banning order to be made as Legal Aid need this to trigger them to forward an application form to him to complete.

At his latest hearing last week, the Judge told him he needed to apply for it, that he could not make an order - that he needed to make an application. The hearing last week was for the matter to be placed in the trial pool.

I have contacted the relevant area of Legal Aid & they have told me that the correct process for this scheme is the original process the previous Judge informed him.

Can anyone advise where to go from here? Has the Judge last week given the incorrect information and inturn jeopardised his opportunity to access this scheme?

Thank you

 

[Jake Matherson]

Hey,

Being placed in the trial pool awaiting trial dates is different to actually being given trial dates.

My case will also fall under "SECTION 102NA MANDATORY PROTECTIONS FOR PARTIES IN CERTAIN CASES"

I have been in the trial pool for a while now.
At my last case management hearing I was hoping to be awarded trial dates but alas further adjournment for another case management however, Judge said an application for the 102NA funding can't be made until AFTER trial dates are given.

So unless you have been given firm trial dates and not just waiting in the pool I suspect you have to wait before making an application.

This is based on my experience and what my Judge said. He could be wrong????

Do let me know if you work it out because it will benefit me also.

Cheers,

 

[AmandaB]

Hi Jake

Thanks for the reply - what you have been told sounds similar to what we previously have. The trial dates arent going to be set until Sept 2020 for trial to be held 2021 sometime.

Of course if there was an application we could access, we would have completed it by now.

He is going to see a lawyer about this process & other matters relating to the proceeding over the next few weeks - I will let you know what their interpretation is

I will paste below the email I received from Legal Aid about the scheme, just for some more info. Please note our surnames are different, so they must have used mine when they searched for a banning order.

Good morning

Thank you for your enquiry regarding assistance from the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme)

The Scheme is funded by the Commonwealth government, to provide legal assistance to unrepresented parties for the purposes of cross-examination. Legal Aid Queensland administers the Scheme.

To receive assistance under the Scheme:

*the court must have issued a Banning Notice preventing personal cross-examination under s102NA of the Family Law Act 1975 and provided a copy of the Notice to Legal Aid Queensland (LAQ);
*the dates for trial must be set;
*you must be unrepresented and,
*funding must be available within the scheme.

When the court issues a Banning Notice, it is provided directly to LAQ by the court with a copy of the court order listing the matter for hearing.

LAQ has not received a copy of the Banning Notice and court order made in your matter.

If a Banning Notice and order has been made, please contact the court and request they forward a copy of Legal Aid Queensland. No action can be taken until this is received form the court.

If you are unsure whether Banning order has been made, or seek advice on asking the court to make one, please contact the court registry who can assist you.

Maddison
Administration Officer |Compliance and Financial Management| Grants Functional Support Team | Legal Aid Queensland | www.legalaid.qld.gov.au

 

[Jake Matherson]

That last dot point is going to be the kicker for the both of us I reckon.

"*funding must be available within the scheme. "

Chatting with the ICL and comments from the judge at my last hearing.
Basically using made up numbers the government allowed funding for 20 cases and had like 300 on the books.

Prepare yourself for a bit of a circus with regards to this.

FLPA calls for better legal aid funding management - Family Law Practitioners Association of Queensland

Media Release 29 February 2020 FLPA calls for better legal aid funding management The Family Law Practitioners Association of Queensland (FLPA) welcomes the government’s announcement to provide more funding to Legal Aid Queensland for cases to which section 102NA of the Family Law Act 1975...

www.flpa.org.au

 

[AmandaB]

Update - we haven't seen a lawyer yet, given the current Coronavirus situation.

We did get a copy of the orders back and under "The Court Notes" is the following -
"That the parties have advised that a mandatory ban does not apply pursuant to section 102NA. Any party wishing to apply for a discretionary ban pursuant to section 102NA is directed to file an Application in a Case."

It was her solicitor who told the Judge that there was no entitlement for section 102NA as there isn't a current order in place, however the same orders also state that one of the ongoing issues is the allegations of historical family violence(mainly verbal & please note that the 2 DVOs were put on my partner from his ex 1800 kms away as a way to control the situation)

It is my understanding that an Application in a Case is used when proceedings have commenced and you would like to change what you originally asked for in either interim or final orders ?? There was no scheme for this kind of thing when he lodged his paperwork in Jan 2018. Also, does an Application in a Case require an appearance at Court?

Please let me know if I am wrong.

 

[Jake Matherson]

It is my understanding that an Application in a Case is used when proceedings have commenced and you would like to change what you originally asked for in either interim or final orders ??

Yes. Think of it like applying for another Interim hearing because circumstances have changed significantly enough to warrant new Orders.
You file an application and if granted you have another court appearance and and new Orders are made.

Thanks for the update.