Danniell & Mounce
[2021] FamCA 594
•9 August 2021
FAMILY COURT OF AUSTRALIA
Danniell & Mounce [2021] FamCA 594
File number(s): SYC 5699 of 2016 Judgment of: ALTOBELLI J Date of judgment: 9 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application of s 102NA of the Family Law Act 1975 (Cth) – where the solicitors for the wife have come off the record in close proximity to the final hearing – whether it is appropriate to apply the mandatory or discretionary provisions of s 102NA – order made pursuant to discretionary provisions of s 102NA – final hearing adjourned. Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Delancy & Theobald [2019] FCCA 3852
Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90
Re K (1994) FLC 92-461
Number of paragraphs: 20 Date of last submission/s: 9 August 2021 Date of hearing: 9 August 2021 Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Lander & Rogers The Respondent: In person ORDERS
SYC 5699 of 2016 BETWEEN: MR DANNIELL
Applicant
AND: MS MOUNCE
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The final hearing listed for five days commencing 16 August 2021 be vacated.
2.The matter be adjourned to 16 August 2021 at 10am for possible interim hearing.
3.The matter be listed for final hearing on 6 December 2021 at 10am, with an estimated hearing time of five days.
4.By no later than 4pm on 12 August 2021, the Applicant is to file and serve a Case Outline document setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
5.By no later than 4pm on 13 August 2021, the Respondent is to file and serve a Case Outline document setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
6.Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be urgently appointed for the child X born … 2015 and the Legal Aid Commission of New South Wales is requested to provide such representation by appointing a senior in-house solicitor in this role.
7.Once appointed, the parties provide to the Independent Children’s Lawyer copies of all documents filed by them in these proceedings, together with all existing Orders and copies of any relevant reports, within seven days of such a request being made.
8.Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
9.Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena or pursuant to s 69ZW of the Family Law Act 1975 or ss 245D and 248 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) in these proceedings.
10.Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.
11.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 11 September 2019, the Respondent must not cross-examine the Applicant personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Respondent.
12.Within seven days of the date of these orders, the Respondent complete the “Scheme Application Form” and provide to Legal Aid NSW (…@legalaid.nsw.gov.au) for the allocation of a legal practitioner.
IT IS NOTED THAT
A.Pursuant to s 102NA(1), there is an allegation of family violence between the Applicant and the Respondent, and the Court has made an order that the requirements of subsection (2) are to apply to the cross‑examination.
B.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)pursuant to those requirements, any cross-examination of either party may 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; and
(d)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
C.If the Respondent fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danniell & Mounce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from the transcript)ALTOBELLI J:
INTRODUCTION AND BACKGROUND
This case is about X, who is six years old. There is intense parental conflict about where he lives, in a geographical sense, and what time he should spend with his father. The mother proposes, doing the best I can to ascertain from the material that has been filed, that X continues to live with her in the City A area. The father proposes that X lives with his mother but in Sydney. However, in a number of alternative proposals should the mother living in Sydney not be the case, he proposes that X lives with him in Sydney. Currently, X lives with his mother and spends time with his father, though I understand that recently there may have been some problems with this time occurring due to COVID-19 restrictions.
The matter was listed for final hearing for five days next week before me. The mother recently became self-represented and now makes an application pursuant to s 102NA of the Family Law Act 1975 (‘the Act’) which would necessitate a vacation of the final hearing. The father opposes the making of such an order.
These brief reasons for judgment explain why, firstly, the Court has made the s 102NA order, secondly, why the Court has vacated the final hearing, thirdly, why the Court has listed the matter for 10am next Monday for a possible interim hearing, and, finally, why the Court has appointed an Independent Children’s Lawyer.
The father was represented by his senior counsel, Mr Campton, and the mother represented herself.
The matter seems ready for a final hearing and, doing the best I can, it looks like the only thing that is missing are the Case Outline documents. Nonetheless, I think it is a reasonable assumption that the parents remain polarised in their proposals about X. The father is a health professional in Sydney, the mother is currently the full time carer for X and lives in City A. She and X relocated there in 2018. It would seem that the main presenting issue in this case is whether the mother presents some form of risk of harm to X due to issues relating to her mental health and alcohol abuse. However, there are also issues that she raises about family violence. A single joint expert, Dr P, has been appointed and he has prepared a report.
APPLICABLE LAW
The applicable law is firstly contained in s 102NA of the Act:
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
(iii) if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
In addition, there are a number of relevant paragraphs from two first instance judgments.
In Owen & Owen [2020] FamCA 90 Gill J stated at [9] that:
It should be observed that what is required is not the proof of family violence, but rather the allegation of family violence. It should also be recognised that the allegation must relate to family violence between one party and the other, rather than against another family member. The provision does not distinguish between which party is the alleged perpetrator and which is the alleged victim.
At [21] – [32] Gill J considers the discretion pursuant to s 102NA(1)(c)(iv), and having regard to the relevant Explanatory Memorandum, concludes at [29]:
29. In broad terms it may be discerned that the mischief being remedied/purpose of the enactment, involves:
a) The protection of alleged victims of family violence from re-traumatisation due to being cross-examined by the alleged perpetrator;
b) The preservation of the integrity of the evidence in the proceedings by:
i) Enabling alleged victims of family violence to give evidence under circumstances that promote their ability to give clear evidence;
ii) Not requiring alleged victims of family violence to cross-examine alleged perpetrators of family violence in a context of power imbalance;
iii) Providing a mechanism for cross-examination where direct cross-examination is not allowed.
In Delancy & Theobald [2019] FCCA 3852 at [7] – [12], I stated:
7. The Court clearly has a discretion. Should it exercise its discretion in the Mother’s favour in the circumstances where the allegations seem to be poorly particularised and, in any event, are historical? Should the discretion be exercised in the Mother’s favour in circumstances where one would have thought that the main issue in this case was not so much the family violence allegations, but the question of the risk of harm presented to a child as a result of the mother’s drug abuse or alleged drug abuse? It could be said by some, for example, that this is not a family violence case, it is a drug case. Why, then, should the Mother receive the benefit of a series of protections that were enacted as a result of concerns over family violence?
8. The legislation is unclear about these issues and is relatively untested. Reference to the Explanatory Memorandum does provide some assistance in understanding the rationale of these amendments.
9. For example, Paragraph (4) of the Explanatory Memorandum provides some assistance and enables the Court to conclude that the rationale of these amendments includes avoiding and/or minimising the risk of retraumatisation for victims of alleged family violence and to seek to mitigate the power imbalances potentially created when an alleged victim is put in a situation where she, in this case, must personally cross-examine the alleged perpetrator. That is the underlying rationale.
4. The issue of personal cross-examination of victims by their alleged perpetrators in family law matters is an issue of community concern. 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.
10. The amendments apply to both Final and Interim Hearings. The trigger seems to be the fact of cross-examination. I acknowledge that cross-examination could be allowed in interim proceedings, but the fact is that the legislation makes no differentiation between Final and Interim Hearings.
11. It is interesting that the legislation is silent on issues such as the antiquity of family violence allegations. For example, s102NA(1)(b) the Act it doesn’t say, for example “recent” allegation of family violence. It simply says there is an allegation of family violence, and, indeed, the rationale for that may well be that even past alleged instances of family violence are productive of the risk of retraumatisation and the power imbalances which are the underlying rationale of the amendments in question.
12. This discussion of the focus of these amendments is based on what can only be described as a limited consideration of the legislation, and in the context of little guidance from other cases. The rationale seems to be to focus on the dynamics of retraumatisation and power imbalances. Thus, it does not need to be a family violence case. It can be a property case. And it certainly would cover a case such as this one where the main issue might otherwise be the question of the risk of harm to a child from the Mother’s drug dependence or drug abuse, but where the underlying dynamic is alleged to be family violence.
DISCUSSION
This is a case where the mandatory provisions do not apply. This order is made the basis of the Court’s discretion.
The father submitted that there is a risk that the mother is using this application under s 102NA as a mere device to delay the final hearing.
I consider this risk to be mitigated by the following. Firstly, that I will order that an interim hearing take place next Monday. Secondly, I am reasonably confident that I can hear this matter to finality before Christmas 2020 and, indeed, before I finish these reasons, I may well be able to allocate a hearing week. The risk of harm issues that seem to be the focus of this case are mitigated by the fact that there can be an interim hearing next week, and that the final hearing is not being adjourned indefinitely.
I take no consolation from the fact that it is not the father who will personally cross-examine the mother, as the cases to which I have made reference demonstrate.
There is a risk of re-traumatisation if the mother is to cross-examine the father.
A hearing by way of Microsoft Teams video conference does not mitigate the risk of re-traumatisation.
The wife makes family violence allegations that are serious and the Court takes those at face value at this junction. The father strenuously denies these allegations. His senior counsel contended that the evidence will show that the mother has been inconsistent and, indeed, perhaps even opportunistic in making the family violence allegations. If that is established at a final hearing, she will be accountable for that and the repercussions may well go beyond merely the issue of the adjournment of the final hearing, but all of that remains to be seen.
Her allegations need to be taken at face value, unless clearly spurious and there is no reason to believe that they are the latter.
On these bases, the discretion under s 102NA is exercised in her favour.
This case needs an Independent Children’s Lawyer. It meets the Re K (1994) FLC 92-461 guidelines in that there are allegations of abuse and intractable conflict. I express my surprise that this has not occurred before now and, if my memory serves me correctly, when I raised this on earlier occasions, I was reassured by the parties’ lawyers that an Independent Children’s Lawyer was not necessary because the parties were so capably represented. That is no longer the case. An Independent Children’s Lawyer will be appointed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 12 August 2021
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