Agombar & Ermans
[2021] FCCA 1842
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Agombar & Ermans [2021] FCCA 1842
File number: MLC 2591 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – section 102NA – cross-examination of parties scheme – where father seeks representation under section 102NA – where mandatory provisions do not apply – courts discretion – orders made Legislation: Family Law Act 1975 (Cth), ss 102NA, 102NB Cases cited: Middleton & Redmond [2021] FCCA 316
Owen & Owen [2020] FamCA 90
Number of paragraphs: 19 Date of hearing: 18 November 2020 Place: Melbourne The Applicant: Appeared In Person Counsel for the Respondent: Mr D Carne Solicitor for the Respondent: Ryan Carlisle Thomas ORDERS
MLC 2591 of 2020 BETWEEN: MR AGOMBAR
Applicant
AND: MS ERMANS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The final hearing listed to commence on 30 November 2020 be vacated.
2.Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) ("the Act"), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.
3.The proceedings be adjourned to 2 June 2021 at 10.00am for Final Hearing before Judge McGuire (with an estimated hearing time of two days) at the Federal Circuit Court of Australia at Melbourne.
4.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
AND THE COURT NOTES THAT:
A.Pursuant to order 2 hereof, the Applicant do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his legal representation at Final Hearing.
B.The relevant application referred to in Notation A hereof is available to the parties at 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Agombar & Ermans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND
On 18 November 2021 I made an order pursuant to section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) and reserved my reasons. These are those reasons. These proceedings concern the child X who is now aged 8. The Applicant Father is Mr Agombar (‘the Father’) and the Respondent Mother is Ms Ermans (‘the Mother’).
The issue that came before me on 18 November 2020 was solely whether a section 102NA of the Act order should be made preventing the Father from cross-examination pursuant to the scheme of that section. The matter was listed for final hearing less than two weeks away. The Father asserted he had recently run out of money to continue to retain lawyers for the final hearing.
The proceedings were listed for final hearing on 30 November 2020. On 13 November 2020 the Father emailed the court and the Mother’s solicitor advising that he no longer had representation. That email stated:
Dear Sir
Re Trial date 2 days: 30 November and 1 December 2020 - Federal Circuit Court File No MLC2591/2020
Perry Weston Lawyers have been representing me on a private basis re the above family law matter. Unfortunately, I have ran out of funds at this final step to pay Barrister fees of $9900 up front at trial.
I am now a senior citizen at 60 years of age, work on a casual basis and am the holder of a health care card. This year has hit me hard financially as with all of Victorians due to the lockdowns throughout the year.
Perry Weston have now issued a Notice of Withdrawal [11 November 2020].
I have a filed a Notice of Address for Service [12 November 2020]
I have a current Interim Intervention Order in place that is being contested at the Suburb B Magistrate Court 3 March 2021
Therefore, I have urgently put in an application for Legal Aid re cross examination scheme re the above.
However, I fall outside of the cross-examination scheme time frame.
I respectfully request for an urgent Order be made for the funding of the cross-examination scheme.
Clearly time is the essence as trial date with Judge McGuire is in 2 weeks.
Your understanding and urgency is greatly appreciated!
Thanking you in advance
Kind Regards
The solicitor for the Mother then emailed the court later that day and requested the matter be urgently listed for mention to address the section 102NA issue.
SECTION 102NA
Section 102NA of the Family Law Act states:
102NA Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and 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 or 114 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 requirements of subsection (2) apply to the cross‑examination.
(2) Both of the following requirements apply to the cross‑examination:
(a)the examining party must not cross‑examine the witness party personally;
(b)the cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.
Note 1:This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2:This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3:To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3)The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i) the witness party; or
(ii) the examining party; or
(ii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
Hence section 102NA(1) has three limbs, (a), (b) & (c) and the third limb, (c), has four branches. Each limb must be found to apply but any of the four branches of the third limb is sufficient for that limb to apply. The fourth branch of the third limb gives the court a discretion to order a ban on personal cross examination whether or not any of the other three (of the four branches) apply provided the first two limbs are satisfied.
Section 102NB is a related back up provision. If sections 102NA(1) & (2) do not apply and a party intends to cross examine and there is an allegation of family violence then the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim of family violence.
Sections 102NA and 102NB provide a cascading scheme of provisions where there is an allegation of family violence and a party intends to cross examine another party personally. If the more stringent or serious conditions of 102NA(1) are met the ban on personal cross examination and the obligation for cross examination to be conducted by a legal practitioner is mandatory and at public expense. If the stringent conditions of section 102NA(1) are not met but there is an allegation of family violence and a party intends to cross examine another party then section 102NB provides that the court must still ensure there are appropriate protections for the party who is alleged to be the victim of family violence in every case.
DOES IT APPLY?
The parties addressed me on the three limbs of section 102NA(1) and the four branches of the third limb.
It was common ground that the first two limbs, section 102NA(1)(a) & (b) apply.
It was common ground that at the time of the hearing subsection 1(c)(i) did not apply as neither party had been convicted of an offence involving violence or the threat of violence. Subsection 1(c)(ii) did not apply as an interim intervention order, but not a final order, was in place. Subsection 1(c)(iii) did not apply as no such injunction existed under section 68B or 114.
Counsel for the Mother advised me that if I were to make a section 102NA order it would be required to be made at the discretion of the court under the fourth branch of the third limb; section 102NA(1)(c)(iv).
Counsel for the Mother referred me to relevant sections of the Mother’s affidavit as to the allegations of family violence. The Father’s affidavit annexed the application that resulted in the interim family violence order.
As I did in the matter of Middleton & Redmond [2021] FCCA 316 (‘Middleton & Redmond’) I also considered, and I follow, the decision of Gill J in Owen & Owen [2020] FamCA 90 (‘Owen & Owen’) delivered on 17 January 2020, where his Honour dealt extensively with the exercise of the discretion contained in the fourth branch of the third limb. In this case, because the first and second limb apply (described as “necessary precursors” by Gill J) I had a discretion as to whether to make an order that section 102NA (2) applies as the mechanism that would trigger the third limb and hence the then mandatory ban on personal cross-examination. This is so notwithstanding that none of the other three conditions of the third limb applied.
In this matter I took into account the various purposes of the division containing section 102NA. I also took into account the following:
(a)That the funds available to Victoria Legal Aid to fund the scheme are limited and care needs to be taken to ensure that the allocation of public funds happens entirely consistently with the purposes of the legislation.
(b)That if an order was made and a request made to Victoria Legal Aid, the request was likely to be followed and the Father’s representation funded. If it were not funded that would require reconsideration of whether the order should remain in that changed circumstance.
(c)The timing of the application: it is made shortly before a final hearing is listed and will necessitate vacation of that listing.
(d)It is not disputed the application is made bona fide and not in any way for the purpose of postponing the final hearing.
(e)The allegations of family violence, mostly verbal abuse, is alleged to have occurred over a long period, in 2014, in 2015 and in 2019 and were alleged to be escalating.
(f)The intervention order may become a final order upon the final hearing in the Magistrates Court in which case the section 102NA third branch would be satisfied by section 102NA(1)(c)(ii).
(g)That one of the parents had (on her account for good reason) changed her mind and effectively dictated a change of “time with” arrangements to the other parent and that may be appropriately protective, or manipulative, depending on facts in issue.
(h)The likely need for judgement about, and in, cross examination about the allegations and each parents insight into his or her contribution to the conflict.
(i)The concern of the family report writer as to the extent the child had been involved in the parental dispute and the likely need for cross examination about that matter and others.
(j)The likely increase in stress for the alleged victim of family violence of cross examination in person in all the circumstances.
(k)The likely increase in difficulty for the alleged perpetrator of family violence to have to cross examine in all the circumstances.
In contemplating whether to make the order in my discretion, I advised the Father that the ripple effect of such an order would be that the trial listed on 30 November 2021 would not be able to proceed as Victoria Legal Aid would require 12 weeks to appoint representation under the scheme.
The Father wished to be represented under the scheme but also did not want to prejudice the listing of the final hearing. Those simultaneous mutually inconsistent propositions needed to be wrestled with.
CONCLUSION
Balancing those matters I determined pursuant to section 102NA(1)(c)(iv) that the fourth limb of the third branch was satisfied in the exercise of my discretion and made the order that section 102NA(2) applies (which prohibits cross examination by the parties of each other personally) and requested Victoria Legal Aid to fund the Father’s representation under the cross examination scheme.
The proceedings were adjourned for final hearing on 2 June 2021 before Judge McGuire, as he then was. The matter has since been re-listed before Judge Davis with that final hearing to be heard on 11 October 2021. Victoria Legal Aid have since advised that the Father has had representation appointed under the scheme.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 11 August 2021
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