Carano & Carano
[2023] FedCFamC2F 1566
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carano & Carano [2023] FedCFamC2F 1566
File number(s): MLC 10929 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – property application – mother recently became unrepresented – section 102NA order – allegations of family violence – requested for legal aid assistance – procedural orders Legislation: Family Law Act (Cth) ss 102NA (1)(a) (b) (c) (i) (ii) (ii) (iv) Cases cited: Middleton & Redmond [2021] FCCA 316
Nasar & Tarvin (No.2) [2023] FedCFamC2F 247
Division: Division 2 Family Law Number of paragraphs: 10 Date of last submission/s: 16 November 2023 Date of hearing: 16 November 2023 Place: Melbourne The Applicant: Appearing in Person Solicitor for the First Respondent: SMR Legal Solicitor for the Second and Third Respondents: Perry Watson Lawyers ORDERS
MLC 10929 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CARANO
Applicant
AND: MR CARANO
First Respondent
MS B CARANO
Second Respondent
MR C CARANO
Third Respondent
ORDER MADE BY: JUDGE O'SHANNESSY DATE OF ORDER: 16 NOVEMBER 2023 THE COURT ORDERS THAT:
1.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(i),(ii),(iii),(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and Ms Carano ('the Wife) and Mr Carano ('the Husband') must not cross examine the other personally.
2.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Wife under the Commonwealth Family Violence and Cross Examination of Parties Scheme.
3.For the purpose of order 1 hereof, the Wife 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 (102NA) to enable her legal representation at Final Hearing.
4.By no later than 7 December 2023, the Wife file and serve a list of items of property she seeks to retain in the division of property of the Husband and Wife and cross referenced to the expert valuation of the evidence/reports.
5.The date for the parties lawyers (and if a party is representing themselves, that party) to complete conferring pursuant to Order 5 of Orders 27 July 2023, be extended to be completed by no later than 5.00pm, Wednesday, 31 January 2024.
AND THE COURT NOTES THAT:
6.The relevant application referred to in order 2 hereof is available to the Wife at in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
8.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
9.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
10.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Section 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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Carano, the matter comes before me after the Court was alerted that the applicant in the proceedings would shortly be unrepresented or is unrepresented, and the applicant appears before me in person this day.
The purpose of the mention was to deal with the issue of section 102NA of the Family Law Act (Cth). That provision is recited below:
(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 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.
(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
(iii)if an independent children's lawyer has been appointed for a child in relation to the proceedings--that lawyer.
Upon discussion with the applicant and the solicitors for the other parties, it appears that the first and second limb, 102NA(1)(a) and (b), are satisfied.
There are allegations of family violence by Ms Carano against Mr Carano, and there are allegations of family violence by Mr Carano against Ms Carano. There have, in the past, been final intervention orders in place that expired mid 2023, and Mr Carano and Ms Carano each separately have applied for or seek that, a final intervention order be again made against the other party.
In addition, Ms Carano, the Applicant, has this day told me that on 29 August 2023, she was told by the police that on an occasion at about that time, when Mr Carano had attended the police station, he had become upset and he had made threats against his own life and also the life of Ms Carano. The reality is that each party alleges that they have suffered violence at the hands of the other party. There are allegations of very serious violence.
No party argues that section 102NA should not be invoked. The strict requirements of the third limbs of 102NA(1)(c)(i), (ii) or (iii), at this point in time, do not apply. But there is a real possibility that either by the time of the final hearing or soon thereafter, there will be a family violence order other than an interim order applying to both parties.
I recite a description of the scheme of section 102NA in Middleton & Redmond [2021] FCCA 316.
67I 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.
I adopt the description of the concept of the scheme of section 102NA from Nasar & Tarvin (No.2) [2023] FedCFamC2F 247.
61I have found from experience of explaining section 102NA to litigants in person on dozens of occasions over the last couple of years that one convenient way to think of section 102NA is as having three substantial limbs (being 102NA(1)(a), (b) and (c)), but with the third limb having four separate branches (being the subsections of 102NA(1)(c)(i) to (iv)).
…
67It must be acknowledged that section 102NA is a draconian and drastic restriction upon the time honoured right of a party to cross-examine another party or witness giving evidence contrary to him. The section 102NA scheme is, as discussed in the decisions cited, for the protection of victims of alleged family violence, and to prevent the re-traumatisation of the alleged victim by the cross-examination process when it is being carried out personally by the other party.
68Hand in hand with that draconian restriction is the generous scheme when a party is prevented from cross-examining. Parliament has set aside a separate bucket of money to be administered by state legal aid bodies for the purpose of ensuring the representation of the restricted party. In this way, the other party can be cross-examined, but not by the litigant in person but by a lawyer. This has the collateral benefit that, inevitably, the otherwise unrepresented party obtains the benefit of the legal advice of the lawyer that would be undertaking the cross-examination.
69Further, certainly in Victoria, the scheme being administered by Victoria Legal Aid has imposed conditions upon that grant of aid such that the lawyer appointed under the scheme effectively has the responsibility of the conduct of the entire case, not just the cross-examination of the other party. That comes with real advantaged and disadvantages. A litigant in person has at first been excited about the prospect of having a lawyer appointed for them at public expense, only to be profoundly disappointed when the lawyer has provided legal advice that runs contrary to what the person wanted or expected to hear.
…
71If section 102NA mandatorily applies there is no discretion: the parties cannot cross examine each other and the resources of the section 102NA cross examination scheme are made available and not means tested…
In all of those circumstances, I am satisfied that it is appropriate and proper that I activate the fourth branch of the third limb (Section 102NA(1)(c)(iv)) of the provisions. I do so principally because of the seriousness of the allegations and the reality that it is likely, not certain, that a final intervention order will be in place by the time of the final hearing being completed and the disruption that would cause to the listing of these proceedings if that were to occur.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 December 2023
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