AHMED and GUPTA

[2020] FCWA 103

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: AHMED and GUPTA [2020] FCWA 103

CORAM: DUNCANSON J

HEARD: 9 JUNE 2020

DELIVERED : 18 JUNE 2020

FILE NO/S: PTW 7711 of 2017

BETWEEN: MR AHMED

Applicant

AND

MS GUPTA

Respondent

Catchwords:

PRACTICE AND PROCEDURE - application for discretionary ban on personal cross-examination - application granted

Permission to redact identifying information from subpoenaed documents

Legislation:

Family Law Act 1975 (Cth) s 102NA
Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Ms T Wall
Independent Children's Lawyer	:	Ms A

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Bannerman Solicitors
Independent Children's Lawyer	:	Law Firm A

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahmed & Gupta has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1These proceedings concern the children [Child A] who is four years of age and [Child B] who is two years of age. The father, [Mr Ahmed] and the mother, [Ms Gupta] are unable to agree about the parenting arrangements in respect of the children.

2The proceedings are listed for trial to commence on 25 June 2020.

3The proceedings were listed for a status hearing on 9 June 2020. Also before the Court on that date was an application in a case filed by the Independent Children’s Lawyer [(“ICL”)] on 14 May 2020 in which the ICL seeks the following orders:

1That this Application be listed on an urgent basis, prior to the parties Pre-Trial Conference on 3 June 2020.

2That the Court apply the Family Violence Personal Cross Examination Scheme through section 102NA(1)(c)(iv) of the Family Law Act 1975.

4On 9 June 2020, I made an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) will apply to any cross-examination in the proceedings. These are my reasons.

BRIEF BACKGROUND AND SHORT RELEVANT HISTORY

5The father was born [in] 1981 and is 39 years of age.

6The mother was born [in] 1990 and is 30 years of age.

7On 24 November 2013 the parties entered into an arranged marriage in [Country A]. After the parties married, the father moved to Perth and the mother remained living in Country A.

8[In early] 2016, Child A was born in Country A.

9In July 2016 the mother and Child A moved to Australia. They lived with the father and his brother.

10On 5 April 2017 the parties separated on a final basis.

11On 20 April 2017 the mother sought and was granted an interim family violence restraining order (FVRO). On 2 June 2017 the FVRO became final. The FVRO was not subsequently extended.

12[In mid] 2017, the parties second child, Child B was born.

13The father commenced these proceedings on 7 December 2017.

14On 2 March 2018 an order was made for the appointment of an ICL.

15On 19 April 2018 the mother filed a Notice of Child Abuse or Family Violence (or Risk). The father denied the allegations of family violence and abuse.

16In mid 2018 the children commenced spending supervised time with the father. Currently they spend time with him each alternate Saturday with handovers supervised by [Supervision Agency A].

17[Dr C] was appointed Single Expert Witness on 15 May 2019 and she provided a report dated 30 December 2019.

18On 30 June 2020 the parties attended a pre-trial conference with a Registrar. Both parties were legally represented at the conference. No agreement was reached. The Registrar noted that the issues between the parties which go beyond the issues disclosed the papers are complex and the Court would be assisted if both parties had legal representation at the trial.

THE CROSS-EXAMINATION BAN

19The mother who is legally represented in the proceedings consented to the order sought by the ICL. After some discussion with the father, who is not legally represented in the proceedings, he confirmed that he too consented to the order sought.

20Both parties and the ICL acknowledged and accepted that in the event the order for the cross-examination ban was made, the trial may have to be adjourned if legal representation for the father could not be arranged in time.

THE LAW

21Section 102NA provides:

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.

22Subsection 2 prohibits personal cross-examination by a party (the examining party) of another party (the witness party) and provides that such cross-examination must be conducted by a legal practitioner acting on behalf of the examining party, in certain circumstances.

23Those circumstances are set out at subsection (1). The requirements of subsections (1)(a) and 1(b), namely that there is an intention to cross-examine and there is an allegation of violence between the examining party and the witness party, must be satisfied.

24In addition to those requirements, if the Court is satisfied as to any of the criteria set out in subsection (1)(c)(i), (ii) or (iii), the imposition of the cross-examination ban is mandatory ("mandatory ban"). If none of the criteria set out in subsection (1)(c)(i), (ii) or (iii) are met, the Court may nevertheless order that the requirements of subsection (2) are to apply to the cross-examination ("discretionary ban").

25In the circumstances of this matter, the father who is unrepresented in the proceedings states he intends to cross-examine the mother as he strongly contests her evidence. The mother alleges family violence perpetrated by the father against her. The requirements in subsection (1) are therefore met.

26None of the criteria in subsection (1)(c)(i), (ii) or (iii) are satisfied. Neither party has been convicted of, or charged with an offence involving violence or a threat of violence to the other party. A family violence order does not apply to the parties. A family violence order obtained by the mother has expired. There is not an injunction for the personal protection of a party directed against the other party. Consequently a mandatory ban is not applicable.

27I now turn to consider the discretionary application of the section.

28The mother deposes the father was controlling of her and isolated her. She deposes he was physically violent to her and he slapped and pushed her and sexually abused her. She deposes he verbally abused her and was financially controlling. The mother told the Family Consultant she was "very scared" of the father and told her "I'm frightened of the man in private".

29Dr C noted from a police incident report dated 5 April 2017 that the mother said she was "extremely fearful" of the father and his brother. Dr C reported the mother genuinely believes they will carry out their threats to harm her.

30The father strongly denies there has ever been physical, sexual, verbal, emotional and family violence as alleged by the mother. He deposes the FVRO was obtained on the basis of false allegations.

31Dr C reported that there are competing allegations in terms of domestic violence which ultimately need to be tested. She reported as follows:

The Court is faced with completely incompatible allegations. Either the relationship was very abusive, and the mother was a victim of significant violence, or the father was a victim of very malicious false allegations indicating significant personality disturbance on the mother's part. As stated, I find features which increase the likelihood of the father over the mother. The mother appears to have had mental health issues but not of a personality nature, more of a trauma nature. …

32The Explanatory Memorandum accompanying the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 set out the general outline of the Bill as follows:

1The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (the Bill) would ensure that appropriate protections for victims of family violence are in place during cross-examination in all family law proceedings.

2…

3…

4… Personal cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a legal representative. Personal cross-examination by an alleged perpetrator can expose victims of family violence to re‑traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to personally cross‑examine their alleged perpetrator due to the power imbalances created by family violence.

5…

6It is important that any ban balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.

33There is a risk that personal cross-examination by the father of the mother could expose the mother to re-traumatisation. The cross-examination of the mother should be conducted by a legal representative on behalf of the father. This recognises the need to protect the mother with the need for procedural fairness for the parties.

34In the circumstances of these parties and on balance, I consider I should exercise my discretion to impose the ban on personal cross‑examination by the parties.

35Further I am satisfied I should make the order sought by the mother permitting the redaction of identifying information from documents received from [Company A].

THE ORDERS

AND upon the Court noting that one or both parties have indicated an intention to cross-examine the other at the trial of the proceedings, and that there is an allegation of family violence between them:

AND further noting that the parties have each been notified by the Court:

(a)that pursuant to the following order, neither party is permitted to cross-examine the other party personally;

(b)that pursuant to the said order, any cross-examination of either party must only be conducted by a legal practitioner acting on behalf of the other party;

(c)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer;

(d)that a copy of these orders will be provided by the Court to Legal Aid Western Australia, which administers the said scheme; and

(e)that Legal Aid Western Australia will be advised that the Respondent is currently represented by a legal practitioner.

IT IS ORDERED THAT:-

1The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.

2The Caseflow Manager forthwith cause a copy of this order to be forwarded to the Applicant, [MR AHMED].

3The Caseflow Manager forthwith cause a copy of this order to be forwarded to Legal Aid Western Australia.

4The solicitors for the respondent have permission to redact any identifying information relating to the Respondent, [MS GUPTA] from the documents produced under Subpoena filed 31 May 2018 to [Company A].

5The Form 2 Application filed by the Applicant on 14 May 2020, and the Form 2A Response filed by the Respondent on 9 June 2020 otherwise be dismissed.

6The proceedings otherwise stand adjourned to trial commencing not before 25 June 2020 at 10.00 am.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

18 JUNE 2020