Darley & Darley (No 7)
[2023] FedCFamC1F 551
•4 July 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 7) [2023] FedCFamC1F 551
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of Reasons: 4 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ordered to apply. Legislation: Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth)
Cases cited: Darley & Darley (No. 2) [2018] FamCA 1086
Hurley and Melton (No. 2) (2020) 61 Fam LR 405; [2020] FamCA 917
Division: First Instance Number of paragraphs: 13 Date of Order: Made in Chambers on 26 May 2023 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DARLEY
Applicant
AND: MS DARLEY
Respondent
order made by:
HOGAN J
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 the pseudonym Darley & Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 26 May 2023, I made an order in Chambers, acting on my own initiative[1], that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) apply to the cross-examination of each of the parties in these proceedings.
[1] Family Law Act 1975 (Cth), s 102NA(3)(a).
The 26 May 2023 order included a Notation that reasons explaining the basis for the order would be delivered at a later date. Whilst I had intended to deliver such reasons as part of the reasons ultimately delivered to determine those matters which are the subject of a trial listed to commence before me on 28 August 2023, subsequent events necessitate the earlier provision of the same.
Consequently, the following are the reasons for my decision to make the order which I did on 26 May 2023 without listing the matter for an appearance.
The parties are again engaged in litigation about those parenting orders which are in the best interests of their children, X (who was born in 2006) and Y (who was born in 2009) – such proceedings were listed, on 25 May 2023, for trial to commence before me on 28 August 2023.
Some relevant matters
The parties have previously been involved in a trial before me (during which each was self‑represented), which occupied seven days between mid-October 2017 and late May 2018; on 12 December 2018, I made final parenting orders in relation the parties’ children and, on 18 December 2018, delivered Reasons for Judgment (“the December 2018 Reasons”) in support of the same.
The findings expressed in the December 2018 Reasons included that:
(a)in her communication to Mr H (who had been engaged by the then Independent Children's Lawyer to prepare an updated Family Report) in September 2017, Ms Darley asked that he “Kindly advise what safety plans have been put in place for the Family Report Interviews”;[2] and
[2] Darley & Darley (No. 2) [2018] FamCA 1086 at [68].
(b)in October 2017, Ms Darley advised Mr H that, given she had not received a response from him about a safety plan for the Family Report interviews, she and the children would not attend that day for the same;[3] and
[3] Darley & Darley (No. 2) [2018] FamCA 1086 at [70].
(c)Ms Darley had asserted at trial that she and the children had been subjected to domestic violence by Mr Darley since 2006 (at which time she was pregnant with X) and that he had:
(i)been verbally abusive toward her; and
(ii)engaged in psychological and emotional abuse and been critical; and
(iii)engaged in coercive controlling behaviour, including by communicating with her in the way that he had[4], and had been abusive and harassing; and
[4] Darley & Darley (No. 2) [2018] FamCA 1086 at [133] to [140].
(iv)physically assaulted the children by using household items to physically discipline them; and
(v)isolated her from her family and friends; and
(vi)gone into rages during which he made threats of violence; and
(vii)stalked her using text messages; and
(viii)thrown items of furniture and toys around; and
(ix)engaged in religious denigration; and
(x)committed financial abuse.[5]
[5] Darley & Darley (No. 2) [2018] FamCA 1086 at [85] and [86].
(d)in mid-2012, Mr Darley’s hands struck the windscreen of the car driven by Ms Darley in the circumstances discussed in paragraphs [92] to [99] (inclusive); and
(e)Ms Darley’s evidence at the trial included that which is set out at paragraphs [105] to [116] (inclusive); and
(f)Ms Darley’s evidence included that she found the entirety of an email sent to her by Mr Darley on 25 January 2018 (set out at paragraph [144]) to be hostile and aggressive;[6] and
[6] Darley & Darley (No. 2) [2018] FamCA 1086 at [149].
(g)toward the end of the parental relationship, the parties yelled at each other and, on occasion, swore at each other and that, on occasion, the father called the mother a “bitch” and a “mole” in the children’s presence;[7] and
[7] Darley & Darley (No. 2) [2018] FamCA 1086 at [228].
(h)a number of Domestic Violence Orders had previously been made against the father, in which the mother and the children had been named as protected persons:
(i)in late 2012 (a temporary order, operative until one week later); and
(ii)in late 2012 (a protection order, operative until late 2014); and
(iii)in late 2013 (a further order made, by consent without admission, to vary an earlier order); and
(iv)in late 2014 (a temporary protection order, operative until early 2015); and
(v)in early 2015 (a protection order made after a contested hearing, operative until early 2017); and
(vi)in early 2017 (a temporary order, operative until the prior final hearing).[8]
(i)in mid-2018, a Magistrate made a Temporary Protection Order Varied Order (in the father’s absence) in which the father was named as the respondent and the mother as the aggrieved and by which an order made in early 2017 was varied;[9] and
(j)the father had accepted that he had previously been charged with breaching a protection order, albeit that the charges were not proceeded with;[10] and
(k)I was not persuaded on the evidence before me that Mr Darley “continues” to commit domestic violence against Ms Darley or that, in attempting to have her comply at times with the terms of then operative parenting orders, he had committed domestic violence or that he had continued to try to isolate the children or Ms Darley from their friends;[11] and
(l)I was not persuaded that, as Ms Darley contended, the fact that each child’s surname was registered as the father’s surname was due to an act of domestic violence.[12]
[8] Darley & Darley (No. 2) [2018] FamCA 1086 at [229].
[9] Darley & Darley (No. 2) [2018] FamCA 1086 at [233].
[10] Darley & Darley (No. 2) [2018] FamCA 1086 at [235].
[11] Darley & Darley (No. 2) [2018] FamCA 1086 at [237] and [239].
[12] Darley & Darley (No. 2) [2018] FamCA 1086 at [268].
As I appreciate it, Ms Darley has, since the December 2018 Reasons were delivered, consistently maintained that she was subjected to family violence by Mr Darley in the manner she has previously given evidence of – which included behaviour which would constitute coercive and controlling family violence. As noted earlier, she has previously given evidence that she has regarded written communication sent by Mr Darley to be hostile and aggressive and I have not understood her to have resiled from the allegations that Mr Darley has previously acted in a manner that constitutes “family violence”.
Further discussion and consideration
The court may make an order under s 102NA(1)(c)(iv) of the Act on its own initiative.[13]
[13] Family Law Act 1975 (Cth), s 102NA(3)(a).
Whilst the Act contains no statutory guidance about matters to be considered by a Court in determining whether or not to make an order that the requirements of s 102NA(2) apply to the cross-examination referred to in s 102NA(1) of the Act, the purpose of the legislation by which sections 102NA and 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied that Bill. The contents of the same included that:
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.
I consider, as I have previously expressed in Hurley and Melton (No. 2)[14] that the purpose of s 102NA should be regarded as protecting the integrity of the litigation process – by protecting against:
(a)the potential that being cross-examined by an alleged perpetrator of family violence can affect an [alleged] victim’s ability to give clear evidence; and
(b)the possibility that, by virtue of the impacts of [alleged] family violence, an [alleged] victim may not be able adequately to cross-examine the alleged perpetrator.
[14] (2020) 61 Fam LR 405 at [24] and [25].
Whilst both Ms Darley and Mr Darley were each required to cross-examine the other at the trial I conducted in 2017 and 2018, this took place before s 102NA was operative.[15]
[15]The section commenced on 10 March 2019 but was operative six months after its commencement date: Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) s 2 and Item 2, Schedule 1.
Having regard to the matters outlined in paragraphs [5] to [7] (inclusive) above and noting the purpose of s 102NA of the Act as discussed, I determined it appropriate to exercise the broad discretion afforded to judges at first instance in determining whether or not to make an order that the requirements of s 102NA(2) of the Act are to apply to the cross-examination of both of the parties in the upcoming trial of the current proceedings in favour of making an order in such terms.
Given the trial dates allocated to the matter, I also considered it appropriate to make an order in chambers on the court’s own initiative and to include the Notation respectfully requesting that Legal Aid Queensland accord any application submitted by either party significant priority given that the matter is listed for final hearing for two days commencing on 28 August 2023.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 4 July 2023
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