Bellanger & Wemble (No 4)
[2024] FedCFamC2F 1606
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – Parenting – trial vacated – parties unrepresented – whether section 102NA(2) order should be made – section 102NA(c)(iv) invoked – section 102NA(2) orders made – related parties restrained from personally cross examining each other – further trial directions made – airport watchlist order remain in place. Legislation: Family Law Act 1975 (Cth) ss 102NA(1)(a)(b)(c), ss 102NA(2) Cases cited: Bellanger & Wemble [2023] FedCFamC2F 1246
Middleton & Redmond [2021] FCCA 316
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 7 November 2024 Place: Melbourne Solicitor for the Applicant: Mr Monoah of Sunshine Lawyers The First Respondent: No appearance Solicitor for the Second Respondent: Mr Ajak of Ajak & Associates Counsel for the Independent Children's Lawyer: Mr Combes Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The final hearing listed for 11 November 2024 be and is hereby adjourned to Monday 5 May 2025 at 10.00 am (for an estimated 4 days) in the Melbourne Registry at 305 William Street, Melbourne.
2.Orders 1 & 2 (restraining the second respondent paternal grandmother, MS PAIGE (‘the Paternal Grandmother’) from leaving or departing the Commonwealth of Australia) and orders 3 & 4 (the watchlist orders) of the orders of 20 August 2024 remain in place until further order.
Section 102NA orders
3.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the first respondent father, MR WEMBLE (‘the Father’) and the applicant mother, MS BELLANGER (‘the Mother’), are prohibited from personally cross-examining one another in these proceedings.
4.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Father 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.
5.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Paternal Grandmother and the Mother are prohibited from personally cross-examining one another in these proceedings.
6.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Paternal Grandmother under the Commonwealth Family Violence and Cross Examination of Parties Scheme, and for the purpose of this order, the Paternal Grandmother 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 her legal representation at final hearing.
Trial directions
7.The Mother be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other parties of that reliance no less than 56 days prior to the final hearing, and in the event the Mother chooses to rely upon a consolidated affidavit of evidence in chief, that affidavit be filed no less than 56 days prior to the final hearing.
8.The Father and the Paternal Grandmother be at liberty to rely upon any affidavit material previously filed in these proceedings.
9.The Independent Children's Lawyer file and serve any material on which he seeks to rely by no later than 28 days prior to the Final Hearing.
10.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.
11.The Mother and the Independent Children’s Lawyer file and serve an outline of case no later than 7 days prior to the trial date which includes:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
12.Subject to order 13 herein, the Father and the Paternal Grandmother be at liberty to file and serve an outline of case no later than 7 days prior to the trial date which includes:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
13.These trial directions do not limit or otherwise affect any right of the Father or the Paternal Grandmother regarding the privilege against self-incrimination at common law or pursuant to the Evidence Act 1995 (Cth).
AND THE COURT NOTES THAT:
A.The Court has exercised its discretion under section 102NA(1)(c)(iv) to prohibit cross-examination in this matter due to the significant allegations of family violence between the parties, the significant risks it is alleged the children face, and the very grave consequences alive in these proceedings for the Paternal Grandmother as well as for the Mother, the Father and the children, which would likely impact upon a victim of alleged family violence giving evidence and/or being cross examined.
B.The relevant application referred to in orders 4 and 6 herein is available to the parties at The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Bellanger & Wemble & Paige and the Independent Children's Lawyer (‘ICL’) comes before me this day on an urgent mention. I am grateful to the represented parties being able to arrange their affairs to attend at very short notice. This mention was only arranged yesterday.
The context to the mention arises from the matter having previously been listed before me and being listed on Monday, 11 November 2024 for a four-day final hearing to deal with a number of issues, including:
·the living arrangements of the two children of the relationship, X born in 2011 and Y born in 2013 (‘collectively referred to as the children’) who currently reside in Country B with their Father, Mr Wemble born in 1986 (‘the Father’); and
·if the Paternal Grandmother, Ms Paige (‘the Paternal Grandmother’) contravened orders of this court by aiding and abetting the removal of the children from the Mother’s care in Country B; and
·the continuation of an injunction restraining the Paternal Grandmother from leaving the Commonwealth of Australia together with a Watch List Order preventing her from doing so.
Ms Bellanger, born in 1991 (‘the Mother’) alleges the contravention of the existing residence orders are most serious and alleges the Paternal Grandmother being complicit, and had a common purpose with the Father, to remove the children from her care.
A detailed background can be found in the first decision of this Court concerning the subject children, anonymised as Bellanger & Wemble [2023] FedCFamC2F 1246, 18 September 2023 (‘the September proceedings’). I repeat some passages from that decision by way of summary:
3The mother, Ms Bellanger (‘the Mother’), who is 31 years of age, and the father, Mr Wemble (‘the Father’), who is 36 years of age, commenced living together in or about 2010 and married in 2011. They separated in November 2014. By that time, they had two children. They divorced, according to the law of Country D, in 2019. Final parenting orders were made in this court on 16 August 2021 for the parents to have equal shared parental responsibility but for Ms Bellanger to have sole parental responsibility for the day to day decision making of the children and for them to live with her, with provisions for spending time and communicating with Mr Wemble.
4In proceedings before me today, the children’s mother, Ms Bellanger, seeks a recovery order issued in the usual terms for the delivery up of the children to her.
5By way of background, the Mother alleges that she took the children to Country D to visit her father in late 2021 and that Mr Wemble and his mother, the Second Respondent, Ms Paige, also went to the same place in Country D at that time. She says that Mr Wemble initiated parenting proceedings in Country D and that the matter finalised in 2022 with the Court recognising the final orders of this court made on 16 August 2021. She says that shortly after that, Mr Wemble had her father arrested in proceedings relating to repayment. She says that she and her family, including the children, went to a hearing in early 2023 relating to that matter and while there, Mr Wemble, Ms Paige (the Father’s mother) and a group of their supporters beat her up and took the children away in a motor vehicle, and that she has not seen them since and has only spoken to them once since then. She says that Mr Wemble and Ms Paige are keeping the children in City B, a city in C State in Country D. Ms Bellanger is now in Country E, and is seeking for the children to be either taken back to Australia or recovered to her in Country E, where she says she will organise for them to return to Australia. The parents and children are Australian citizens.
…
36.I now turn to the rather complicated history of events between the parties. Ms Bellanger and Mr Wemble separated in November 2014. At that time, Mr Wemble left Australia and travelled to Country D. The older child was just 3 years of age, and the younger child was roughly 18 months old. Mr Wemble left the children with their mother. He did not return to Australia until he needed medical treatment by the Australian health system in 2017. He travelled to Australia and, I infer, at public expense had medical treatment. He had apparently suffered a serious injury in a motor vehicle accident in Country D, or thereabouts. Whilst in Australia, he was able to negotiate with the child support authorities and pay arrears of child support that were apparently fixed in the order of approximately $5000.
37In late 2017 Mr Wemble apparently again left Australia, again leaving the children in their mother’s care. The older child, X, would have been just finishing prep at his primary school in Melbourne (prep is the term used in Melbourne for preparatory or introductory year of school). The younger child, Y, would have been just about to commence prep in the January of the following year. The children remained living in Australia in the care of their mother thereafter. Mr Wemble had not otherwise spent time with the children up until the time the mother commenced proceedings on 30 April 2021.
38When Ms Bellanger commenced proceedings in 2021, she simply sought relief that she have sole parental authority for the children and that she be entitled to obtain passports for the children. That matter was returnable before me at that time. I have consulted the Court file about what the issues were between the parents at that time and also to assist me with context. On 30 April 2021, Ms Bellanger simply sought an order that she be granted a court order to obtain the children’s passports and that Mr Wemble be served with her initiating application by email. Ms Bellanger filed a quite detailed affidavit relating to the history of her relationship and events since. In that affidavit, she set out the reason that she had issued proceedings. At paragraphs 17 to 22, she set out the events that caused her to make application to the Court, which read:
17. I also want to be flexible to travel with my children whenever I am travelling overseas to any country. I am a single mother with underaged children who need my constant supervision all the times. I need to be able to travel with them at all times when I am travelling.
18. All my relatives are overseas. I am unable to travel to see my family when I can afford it, because no can reliably look after my children.
19. My father is very old in his 80s and has ill health with several health complications. He has not seen my children.
20. My mum saw my eldest son when he was 5 months old because he was born overseas before I came to Australia . My eldest son turned 9 years now and has never seen my parents since he was 5 months old. My other son, Y has not met my parents or any other immediate family member at all.
21. It is not easy to obtain visitor's visa for my parents or immediate family to visit me and my children in Australia.
22. I recently applied for a mediation to resolve this issue. However, my ex-partner refused to participate.
39Mr Wemble at that time responded, and on 21 July 2021, notwithstanding that he was apparently not in Australia at the time, he had solicitors act on his behalf and file an affidavit and a response document in court. Mr Wemble’s response sought an order for equal shared parental responsibility and for orders that he be permitted to speak to the children by telephone in the circumstances of him living in Country D and the children living with their mother in Australia.
40By this time of mid-2021, the child X, the older child, had progressed to grade 4 at the primary school where he commenced school. The younger child Y had progressed to grade 3. In 2018 (the year after the Father was last in Australia), the older child was in grade 1 and the younger in prep, both attending the same school. In 2019, unvisited by the father, the older child was in grade 2 and the younger child in grade 1. In 2020, unvisited by the father, the older child was in grade 3 and the younger child was in grade 2. The children had spent their entire school lives at the same school in the same outer suburb of Melbourne to that point in time.
41Mr Wemble’s affidavit was filed 21 July 2021, and in that affidavit he complained that Ms Bellanger did not permit him to speak by telephone to the children. Somewhat ironically, he observed the following in that affidavit:
6. I am concerned that Ms Bellanger will travel with the children to countries that are not signatories to the Hague Convention, such as Country E where her family live, and may not return the children to Australia.
…
45. I became concerned about Ms Bellanger’s behaviour and her motives for obtaining passports for the children and I withdrew my consent for the children to obtain passports. Ms Bellanger has not allowed the children to communicate with me since then.
…
51. Ms Bellanger has not consulted me regarding the children’s education. I do not know where the children go to school or how their learning is progressing. The only updates I receive about the children is what I hear through community members via my family.
…
43The matter returned before me on 16 August 2021. I have a recollection of the appearances before me of that day. It may be that I have the recollection because I do not get a lot of matters where one of the parties is living in Country D. In any event, I remember the appearances that day. I recall Mr Monoah appearing for the Applicant Mother, Ms Bellanger, and I recall Mr Wemble appeared by counsel instructed by the solicitors well familiar with the jurisdiction. I made the following orders by consent that day:
THE COURT ORDERS BY CONSENT THAT:
Parental responsibility
1.The parties have equal shared parental responsibility for all long term decisions in relation to the children [X] born [in] 2011 and [Y] born [in] 2013 (“the children”).
2.The Mother have sole parental responsibility for the day to day decision making of the children.
Living arrangements and communication
3. The children live with the Mother.
4.The Mother shall facilitate contact between the children and the Father by video or voice call on two occasions per week on days and time as may be agreed between the parties and failing agreement, with the Father to place the call to the Mother’s phone, as follows:
(a)Each Wednesday between 7.30pm and 8.00pm Australian Eastern Standard Time (“AEST”); and
(b) Each Saturday between 5.00pm and 6.00pm AEST.
5.The Father be permitted to send gifts, cards, letters and emails to the children and the Mother shall provide them to the children.
6.When the Father travels to Australia, he spend time with the children as follows:
(a)As agreed between the parties in writing, and for no less than two occasions of five hours per week; and
(b)That the Father provide the Mother with at least 14 days’ notice of the dates he will be present in Australia; and
(c)That the Father be permitted to take the children to visit the Paternal Grandmother, Paternal Aunts and Paternal Uncle when the children are in his care.
7.Each parent shall advise the other of any change to their telephone number, residential address or email address within 7 days of such change.
8.In the event members of the extended paternal family request to spend time with the children, the Mother shall facilitate such spend time arrangements as may be agreed between the Mother and the extended paternal family.
…
Travel and Passports
12.Pursuant to s11(b)(i) Australian Passports Act 2005 (Cth), the Mother is permitted to do all acts and things and sign all necessary documents to herself obtain and maintain passports for the children [X] born [in] 2011 and [Y] born [in] 2013, at her sole expense, and without requiring the Father’s signature notwithstanding Order 1 herein.
13.The Mother is permitted to travel overseas with the children as follows:
(a)The Mother provide the Father with 30 days’ written notice of her intention to travel, including proposed destination, copies of return flight itineraries when available and details of where the children will be staying during the proposed trip; and
(b)The Mother continue to facilitate the children communicating with the Father via video or voice call on two occasions per week at times to be agreed during her period of travel; and
(c)The Mother provide the Father with written confirmation of landing at each destination (including upon the children’s return home).
[Notations omitted]
44True to her word, Ms Bellanger then arranged for herself and the children to travel to Country D for the purpose of visiting her father. However, Mr Wemble came to know of or became aware of that travel, and wherever he was, he ensured that he arrived at the same place in Country D two days after Ms Bellanger had arrived. Ms Bellanger and the children arrived in late 2021, and Mr Wemble arrived in late 2021. Mr Wemble’s mother and Ms Bellanger’s mother also arrived at the same place.
45Ms Bellanger alleges that Mr Wemble, his mother and her mother, and Mr Wemble’s sisters were involved in a plan or arrangement whereby the children would be removed from her care. I do not make any finding in regard to that allegation at this point on this return of the matter. That may be a matter that I deal with on another occasion.
46It is apparent and clear enough that there was a dispute, or at least an unhappiness on the part of Mr Wemble in terms of the dowry that had been paid by him or on his behalf for the consent or permission to marry Ms Bellanger. Although not covered in detail in affidavit, I permitted Ms Bellanger to give further oral evidence before me this day. She told me, and I accept, that the original dowry was about 150 animals. As a result of Mr Wemble’s unhappiness in regard to Ms Bellanger’s family retaining the dowry, notwithstanding or because of the separation and divorce of the parties, that Mr Wemble issued or commenced court proceedings in Country D soon after their arrival seeking that the children live with him in Country D. Those proceedings were, as I understand it, in City B Court in C State in Country D. There were numerous attendances at that court in regard to those proceedings, with the last day being in early 2022. I have not seen any official court documents from those proceedings, but I am satisfied that Ms Bellanger’s account of the proceedings is close enough.
47Mr Wemble sought orders that the children live with him. Ms Bellanger retained local lawyers and produced to the Court the consent orders of 16 August 2021 made in this court. The end result was that the honourable officers of City B Court in C State in Country D determined that the children should remain with their mother, Ms Bellanger. I am told and I accept that the Court recognised or took into account the 16 August 2021 orders of this court. The children had not been removed from their mother’s care at this point. The children remained in their mother’s care at all times up to the conclusion of those proceedings, on or about early 2022.
48Soon after the conclusion of those proceedings, Mr Wemble was able to take further proceedings in City B Court relating to the repayment. These proceedings were commenced soon after early 2022 and had the immediate effect of Ms Bellanger’s father being arrested and placed in jail. He was released after some few days, but the proceedings and the threat of jail hung over his head. As Ms Bellanger understands it, Mr Wemble was leveraging the children’s welfare in the proceedings to further enhance his case of obtaining the repayment. A significant number of animals were returned in early 2022, and I am told by Ms Bellanger’s solicitor and accept that a plea was made to the Court that time be allowed to recover the animals to be returned because of natural events that had occurred. It appears to me, on the little that I know about the proceedings, that the Court adopted a practical and commonsense approach, and an arrangement was entered into or agreed or ordered that the dowry of animals would be returned in bits and pieces as animals become available. To the best of Ms Bellanger’s information, in early 2022 some 40 or so animals were returned, and then in mid-2022 a further 20 or so animals were returned, and then in mid-2022 a further number of animals were returned, and she is not sure of the numbers, were returned. I use the word “returned”, whereas that word could also be “paid”. It is not necessarily the same animal.
49I found Ms Bellanger’s evidence before me to be frank and unembroidered. I accept what she has told me for the purpose of these proceedings. The consequence of the continuing proceedings against Ms Bellanger’s father, who I note is more than 80 years old and has had surgery in Australia so cannot be said to be of stout health, was that the matter returned to Court in early 2022. It is important that I note that up until early 2022, the children had remained in their mother’s care, notwithstanding that she was staying in City B. She attended Court that day with her family and the children. Outside the Court building, she and her family were set upon by Mr Wemble and his family and his supporters, including Ms Paige. Ms Bellanger was assaulted and bashed. The numbers that Mr Wemble had in the scuffle overwhelmed Ms Bellanger and her supporters, and the two children were forcibly taken from Ms Bellanger’s care and placed separately in different motor vehicles, one driven by Mr Wemble and one driven by an accomplice. They departed the scene with the children. The children were crying as they left. At this point in time, the children spoke little of the local language and had been educated in Australia solely in English. The distress to them of that occasion must have been enormous. The distress to Ms Bellanger must have been enormous.
The matters dealt with previously on an interim basis and such findings were subject to what the other parties wanted to say. The Paternal Grandmother has, from early on, taken the proceedings seriously and has been represented (initially) by a Legal Aid duty lawyer, and subsequently a solicitor, Mr Ajak. The Paternal Grandmother lives in a Melbourne suburb but has family and cultural ties to the jurisdiction and the foreign jurisdiction where the children's father and the children now reside. The Paternal Grandmother strongly opposes and disagrees with the allegations of the Mother. There is circumstantial evidence that would reinforce the Mother’s case, but also the Paternal Grandmother’s case.
Paternal Grandmother legal representation
The Paternal Grandmother’s solicitor, Mr Ajak, had and has been acting pro bono and is of significant assistance to not only his client but also the Court. Mr Ajak has attempted for some time to obtain further representation for the Final Hearing. He had previously managed to organise experienced counsel to appear over a long one-day hearing before me on a pro bono basis back on 3 May 2024, and based on what counsel had told me, he not unreasonably expected counsel to appear at the final hearing. I note that counsel did not give any undertaking or assertion that he would. I was significantly assisted by counsel on the last time that I dealt with the matter. Between May 2024 and September 2024, Mr Ajak has attempted to refer his client to a community legal service and/or to obtain someone interested at Victoria Legal Aid. The Victoria Legal Aid position was complicated because Mr Ajak is not on the Victoria Legal Aid Panel, and for some time the facility of Victoria Legal Aid is not available to all practitioners in Victoria but only those who are on the "Panel".
This relatively recent innovation was, as I understand it, aimed at quality control of representation, but of course has the no doubt unintended consequence of limiting the individual who can seek the assistance of Victoria Legal Aid with their already retained solicitor.
It appears that the Paternal Grandmother has not made a formal application to the Victoria Legal Aid. Mr Ajak, I am satisfied, had hoped and expected to obtain pro bono counsel. I am satisfied that that is not an unreasonable expectation given the well-known circumstance of the capacity of the Victorian Bar to find counsel prepared to undertake difficult cases pro bono. The long and the short of it is that Mr Ajak has not been able to retain counsel to act, nor has he been able to have the Paternal Grandmother’s family rustle up the money necessary to pay counsel even on a reduced fee basis. Mr Ajak is concerned at the disadvantage of his client being unrepresented on very serious charges. It may be that had the Paternal Grandmother applied for legal aid, that she may well have been able to obtain a grant of legal aid as I am satisfied she is not of any significant income or wealth.
In any event, I am satisfied that this is not a matter such as referred to at [156] of the well-known decision of Heydon J in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27.
156.The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other...
In this case I am satisfied that it is the opposite of a torpid languor washing away the drowsy procrastination of the other party.
Section 102NA
It is unfortunate that the matter would only be able to proceed with the Paternal Grandmother being unrepresented and needing the services of an interpreter, and the Father, also being unrepresented (notwithstanding that he is highly educated in this country and does not require the assistance of an interpreter). In any event, I raised with the parties this day whether the provisions of section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) apply,
Section 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.
…
Section 102NA(1)(a)
In this matter the parties intend to cross-examine the other parties, hence the first limb of the three limbs of the tree of section 102NA(1)(a) is satisfied.
Section 102NA(1)(b)
In this matter there are very significant allegations of family violence between the parties. In particular between the Mother and the Father, and also between the Mother and the Paternal Grandmother. The Mother's allegation is that the Paternal Grandmother has been complicit in causing or encouraging the removal of the children from her care by force. The Paternal Grandmother denies that allegation, but nonetheless the allegation is plainly made. Apart from that there are allegations that some years ago the Father engaged in family violence against the Mother, she obtained an intervention order ex parte, and that intervention order expired in about November 2014. I am told, and for today's purposes I accept, that the Father was unable to be served with the intervention order as he had returned to the foreign country where he lives.
Section 102NA(1)(c)
In regards to the third limb of section 102NA there are four different branches to that limb.
Section 102NA(c)(i)
The first branch does not apply as I have no evidence that any party has been charged or convicted of an offence involving violence or the threat of violence to the other party. That is so notwithstanding that those allegations are alive in this case.
Section 102NA(1)(c)(ii)
As to the second branch of the third limb, there was a family violence order between the Father and the Mother, but that has expired. There is no other family violence order relevant to this case.
Section 102NA(1)(c)(iii)
Regarding the third branch of the third limb, there is not an injunction under section 68B of the Act or section 114 of the Act for the personal protection of either or any of the parties directed against another party. In a very indirect sense, it could be said that the extant recovery order is an injunction directed for the personal psychological protection of the Mother. However, it was not under section 68B or section 114. Further, the primary purpose of that application is for the protection of the children. Hence, I am not satisfied that the third branch of the third limb of section 102NA applies.
Section 102NA(1)(c)(iv)
The fourth branch of the third limb means that the section or mandatory requirements would apply where I considered that they should, or what has been described as a discretionary provision.
I am not satisfied that I have a discretion to take into account any matter that might assist a final hearing. Frequently a party seeks the advantages of section 102NA, that is representation at taxpayer expense, for forensic or strategic purposes in the actual litigation. In this case, the Independent Children's Lawyer asserts that matters that should inform that discretion on that fourth branch of the third limb include the following;
(1)the risk to the welfare of the children at issue in the proceedings;
(2)the effect of the parties or any of them being unrepresented and the impact that would have on the welfare of the children; and
(3)the very grave consequences alive in the proceedings for not only the children, but also the paternal grandmother.
Allegations
The ICL notes that the allegations against the Paternal Grandmother are most serious and that the Mother asserts they are of sufficient importance that the court should not only consider but impose a sentence of imprisonment.
I am not satisfied that the paramount consideration in considering Part XI of Division 3 of the Act is the best interests of the children. The paramount consideration of the best interests of the children applies to Part VII of the Act, but not Part XI. However, the best interests of the children are a relevant consideration even though they are not the paramount consideration.
I also take into account the very serious nature of the allegations between the Father and the Mother and between the Paternal Grandmother and the Mother. Those allegations are of the utmost seriousness. The scheme of section 102NA is, as discussed in the matter of Middleton & Redmond [2021] FCCA 316, is primarily concerned with ensuring that a victim of family violence is not further traumatised by being personally cross-examined by the person that has assaulted them.
32Section 102NA lives in Division 4 of Part XI of the Act with which was inserted by Act 159 of 2018, the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) (‘the Amending Act’) and effective from 10 March 2019. The Amending Act did not recite a purpose but it is largely self-evident from the terms of the legislation and the Explanatory Memorandum for the Amending Act. I have referred to the Explanatory Memorandum in accordance with section 15AB(1) and (2) of the Acts Interpretation Act 1901 (Cth). I have taken into account the whole of the Explanatory Memorandum but relevant parts include the following.
33 Paragraph 6 of the General Outline of the Explanatory Outline states:
6.It is important that any ban (on cross examination) balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.
34Paragraph 13 Explanatory Memorandum under the heading Statement of Compatibility with Human Rights, states as follows:
13.The purpose of the Bill is to protect victims of family violence from the trauma of being cross examined personally by perpetrators and promote their access to justice. Personal cross examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to cross examine their alleged perpetrator personally. Therefore prohibiting personal cross examination in family law proceedings where there are allegations of family violence promotes victims right to a fair hearing.
35At paragraph 12 of the Explanatory Memorandum under that same heading it is stated:
12.What constitutes a fair hearing requires recognition of the interests of all parties in a civil proceeding. The procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.
36I also note in the context of this being a property case the following from paragraph 21 of the Explanatory Memorandum states:
21.Being personally cross examined by an alleged perpetrator can affect a victim's ability to give clear evidence. Being required to personally cross examine their alleged perpetrator can also affect a victim's ability to test or challenge evidence that is adverse to the case.
37 Section 15AA of the Acts Interpretation Act 1901 (Cth) commands that:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
38 Section 15AB(1) of that Act commands that:
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
I am satisfied that the nature of the allegations is such that it may well be very traumatic to the Mother to be personally cross-examined by the Paternal Grandmother. I am satisfied that it may well be very traumatic for the Mother to be personally cross-examined by the Father. I am also satisfied that it would be very difficult for the Paternal Grandmother to defend, or refute, or rebut the serious allegations of complicity in a serious scheme to remove the children from Mother's care would entail if unrepresented.
Adjournment
I repeat that it is most unfortunate that these matters come to a head on the (almost) very eve of the final hearing. I have raised with the parties, and they accept, that if an order under 102NA is made, then the matter would necessarily need to be adjourned and I will not be able to accommodate the matter until the first half of 2025. Balancing all of the matters, and in particular the disadvantage or consequences for the three related parties of being personally cross-examined by the other, satisfy me that this is one of those relatively rare circumstances where it is appropriate to make a section 102NA(2) by invoking section 102NA(1)(c)(iv).
I note in the course of the hearing Mr Monoah (solicitor for the Mother) has recounted to me what was understood to be a conversation where the Father mistakenly thought he was talking to Mr Ajak, notwithstanding Mr Monoah's assertions to the contrary. Those matters give Mr Monoah some hope that the matter may be able to be resolved by negotiation between the parties, but that would only be able to happen in a realistic sense were the Father and the Paternal Grandmother represented. There is simply no prospect of the Father and the Paternal Grandmother both being represented, and separately represented, at present.
Conclusion
In all of those circumstances I am satisfied that it is appropriate to exercise my discretion, or to make a finding pursuant to section 102NA(1)(c)(iv), that the requirements of this scheme should apply. That will necessitate vacation of the trial and the adjournment of all extant applications to a date to be fixed, and I will let the parties know as soon as I can find an appropriate date.
I also raised with the parties the issue of whether the existing injunction restraining the Paternal Grandmother from leaving the country and the Watch List Order should be extended in the event of the trial being adjourned. I will make an order ensuring that there is no misunderstanding that both those orders are extended. By reason of the adjournment itself those orders would be extended anyway. However, for the avoidance of doubt, I will extend those orders.
I do take into account the serious imposition upon the Paternal Grandmother of that order that would interfere with her family relationships and cultural obligations in her country of origin. And balancing all of the matters and in the circumstances where no party speaks against it, though I am assuming that if the Father had have been able to attend this hearing that he would have spoken against it strongly (as he did on the last occasion). Hence, those matters are not being extended by consent but by order of the court after the parties have had an opportunity to consider the same.
I express my gratitude to the solicitor for the Paternal Grandmother and the solicitor for the Mother in assisting the court and the community by acting and continuing to act pro bono, and I am grateful to them. This is not an easy matter. It is not an easy matter to act in and it is not an easy matter to give advice in.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 December 2024
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