Bellanger & Wemble (No 5)

Case [2025] FedCFamC2F 783

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bellanger & Wemble (No 5) [2025] FedCFamC2F 783

File number(s): MLC 5456 of 2023
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 1 May 2025
Catchwords:

FAMILY LAW – Parenting – Discharge of section 102NA order – Where section 102NA made under discretionary limb of section 102NA tree – Where party unable to retain legal representation under section 102NA – Where parties consent to discharge of section 102NA order.

FAMILY LAW – Parenting – Contravention – Interpretation of Division 13A – Whether the Commonwealth Criminal Code applicable – Interpretation of “offence” – “Offence” found to be intentionally distinguished by Parliament from Division 13A contraventions in the Act – Interpretation of “aids and abets” – Literal interpretation – Adoption of common law interpretation.

Legislation:

Commonwealth Criminal Code 1995 Chapter 2, sections 11.1, 11.2

Family Law Act 1975 (Cth) ss 7A, 65M, 65N, 65Y, 65YA, 65ZAA, 65ZB, 70NAA, 70NAC, 70NAD, 70NFG 102NA, 112AD, 112AP
Cases cited:

Bellanger & Wemble (No 2) [2024] FedCFamC2F 150

Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139

Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606

Bellanger & Wemble [2023] FedCFamC2F 1246

Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655

Middleton & Redmond [2021] FCCA 316

Radecki & Radecki [2024] FedCFamC2F 811

Schwarzkopff & Schwarzkopff (1992) FLC 92-303; (1992) 15 Fam LR 545
Division: Division 2 Family Law
Number of paragraphs: 41
Date of hearing: 29 April – 1 May 2025
Place: Dandenong
Solicitor for the Applicant: Mr Monoah, Sunshine Lawyers
First Respondent: No appearance
Second Respondent: In person
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:

29 APRIL 2025

THE COURT ORDERS THAT:

1.Order 5 of the orders of 7 November 2024, that is, the order prohibiting the Second Respondent from personally cross-examining the Applicant pursuant to the Section 102NA Cross Examination Scheme, be and is discharged.

Note:   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).

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AGLC
Bellanger & Wemble (No 5) [2025] FedCFamC2F 783
Case
[2025] FedCFamC2F 783
Decision Date

CaseChat Overview and Summary

The case of Bellanger & Wemble (No 5) before Judge O'Shannessy of the Federal Circuit and Family Court of Australia involved a dispute concerning parenting arrangements and the discharge of a section 102NA order. The Applicant, Ms Bellanger, sought the discharge of a section 102NA order, which had been made under the discretionary limb of section 102NA of the Family Law Act 1975 (Cth). The order was originally intended to prohibit the Second Respondent, Ms Paige, from personally cross-examining Ms Bellanger. The parties consented to the discharge of this section 102NA order. The First Respondent, Mr Wemble, was also involved in the proceedings.

The court was required to address two main legal issues. The first issue concerned the applicability of the Commonwealth Criminal Code to contraventions under Division 13A of the Family Law Act 1975 (Cth). The second issue pertained to the interpretation of the term "offence" and the phrase "aids and abets" in the context of the Act. Specifically, the court had to determine whether these terms were intentionally distinguished by Parliament from Division 13A contraventions and whether a literal or common law interpretation should be adopted.

In its reasoning, the court found that the Commonwealth Criminal Code was not applicable to Division 13A contraventions. The term "offence" was distinguished by Parliament from Division 13A contraventions, indicating a deliberate differentiation. Consequently, the court adopted a literal interpretation of the phrase "aids and abets" rather than a common law interpretation. The court concluded that the order prohibiting the Second Respondent from personally cross-examining the Applicant should be discharged, reflecting the parties' consent to this outcome.

The court made an order discharging Order 5 of the orders dated 7 November 2024, which had prohibited the Second Respondent from personally cross-examining the Applicant under the Section 102NA Cross Examination Scheme. This order is subject to certain conditions and may be subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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:

29 APRIL 2025

THE COURT ORDERS THAT:

1. Order 5 of the orders of 7 November 2024, that is, the order prohibiting the Second Respondent from personally cross-examining the Applicant pursuant to the Section 102NA Cross Examination Scheme, be and is discharged.

Note: 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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