Darley (No 2)
[2023] FedCFamC1A 112
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Darley (No 2) [2023] FedCFamC1A 112
Appeal from: Darley & Darley(No 7) [2023] FedCFamC1F 551 Appeal number: NAA 172 of 2023 File number: BRC 2317 of 2013 Judgment of: AUSTIN, Harper & riEthmuller JJ Date of judgment: 2 August 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks leave to appeal from a decision of the primary judge prohibiting the parties from cross-examining one another – Where an injunction was previously made prohibiting the mother from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where appeals only lie from judgments – Where the subject order was no more than a procedural ruling – Where the order does not determine any right enjoyed by the applicant – Where the proposed appeal lacks reasonable ground and is therefore vexatious – Application dismissed. Legislation: Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Family Law Act 1975 (Cth) Pt VII, XIB, ss 4, 94, 102NA, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 36
Federal Court of Australia Act1976 (Cth) ss 4, 24
Judiciary Act1903 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 10.13
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4, ss 26, 28
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364; [1979] FCA 80
Cabal v United Mexican States (No 3) [2000] FCA 340
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Darley [2023] FedCFamC1A 111
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Dupois v Queensland Police Service & Anor [2023] QCA 44
Ex parte Bucknell (1936) 56 CLR 221; [1936] HCA 67
Fierro & Fierro (No 8) [2023] FedCFamC1A 28
Harrell [2021] FamCAFC 119
Jess & Jess (No 3) [2023] FedCFamC1A 2
Kabat & Garacia [2019] FamCAFC 191
Lawrance v The Commonwealth of Australia [2007] FCA 1524
Lorde & Chu [2014] FamCAFC 228
Maclean v Brylewski [2022] NSWCA 217
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Naparus & Frankham (2020) FLC 93-943; [2020] FamCAFC 32
R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
Re the Will of Gilbert (1946) 46 SR (NSW) 318
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42
Wilkes and Wilkes (1981) FLC 91-060; [1981] FamCA 41
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 58 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 172 of 2023
BRC 2317 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DARLEY
Applicant
order made by:
AUSTIN, HARPER & RIETHMULLER JJ
DATE OF ORDER:
2 august 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 27 June 2023 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN & HARPER JJ:
By an Application in an Appeal filed on 27 June 2023, the applicant seeks leave to file an appeal from an order made under s 102NA(1) of the Family Law Act 1975 (Cth) (“the Act”) on 26 May 2023, which order will influence the way in which the upcoming trial of parenting proceedings under Pt VII of the Act is conducted between the parties when it begins before the primary judge on 28 August 2023.
The application is dismissed for the following reasons.
Background
On 23 August 2019, an order was made pursuant to s 102QB of the Act prohibiting the applicant from instituting proceedings under the Act against the father or the Independent Children’s Lawyer without first obtaining leave to do so under s 102QE of the Act.
The injunction was made in these terms:
1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [the father] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
Years later, on 13 February 2023, fresh proceedings were commenced by the father of the subject child under Pt VII of the Act and are now listed for trial before the primary judge in late August 2023. Self-evidently, the s 102QB injunction does not preclude the applicant from responding to the father’s application and contesting those proceedings.
However, on 26 May 2023, the primary judge made this procedural order in the proceedings:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.
The appeal which the applicant now wants to bring from that procedural order is caught by the s 102QB injunction (Harrell [2021] FamCAFC 119 at [8]; SCVG (2020) FLC 93-967 at [24]) and so the applicant needs leave to bring the appeal, the grant or refusal of which leave is governed by the provisions of ss 102QE, 102QF, and 102QG of the Act.
Disposition
Any application for leave to institute proceedings, including appellate proceedings, to override the effect of the s 102QB injunction must be supported by an affidavit containing certain information (s 102QE(3)). If the affidavit does not substantially comply with the statutory requirements, the application may be dismissed on that basis alone (s 102QF(1)).
In support of her application for leave to institute the appeal proceedings, the applicant relied upon her two affidavits filed on 27 June 2023 and 29 June 2023 and her written submissions and ‘further submissions’ filed on 26 July 2023.
In supposed fulfilment of her obligation under s 102QE(3) of the Act, the applicant deposed this in her first affidavit:
5. I state in relation to s102QE(3) that:
(a)this Application, Appeal NO 83/2019, Appeal No NAA74/2023 and my Application for a Recovery Order filed 4 November 2022 are the only occasions I have sought leave in this regard;
(b)Application for Protection Orders in the Magistrates Court and District Court, current Protection Order in place protecting myself and the children dated 17 November 2022;
(c) Applications to the High Court which were not successful;
(d) To the best of my knowledge I have disclosed all relevant facts.
(As per the original)
Such evidence falls far short of disclosure of all relevant former litigation and cannot be properly construed as “substantially comply[ing]” with s 102QE(3) of the Act, as the Full Court recently pointed out when dismissing another similar application brought by the applicant on the same evidence (Darley [2023] FedCFamC1A 111).
The applicant realised the insufficiency of such evidence was fatal to this application when the Full Court delivered ex tempore judgment on 29 June 2023 dismissing her last application – hence her second affidavit filed on 29 June 2023, in which she gave much more voluminous evidence in purported compliance with s 102QE(3) of the Act. Even assuming the applicant’s second affidavit now substantially complies with her obligation of disclosure, there are other hurdles for her to surmount.
The application under s 102QE of the Act for leave to bring this appeal must be dismissed if the proposed appeal falls within the definition of “vexatious proceedings” (s 102QF(2)) or if the applicant fails to satisfy this Court that it is not vexatious (s 102QG(4)).
The term “vexatious proceedings” is defined as follows (s 102Q(1)):
“vexatious proceedings” includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
As can been seen from sub-paragraph (c) of the definition, it is enough for the intended appeal to be characterised as vexatious if it lacks “reasonable ground”. The appeal which the applicant wants leave to bring does lack reasonable ground and is therefore vexatious.
Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), which are “operative judicial acts” resolving the entire justiciable dispute or at least determining the parties’ rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
Judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26).
The decision made by the primary judge on 26 May 2023 to invoke s 102NA(2) of the Act and thereby prohibit the parties’ from cross-examining one another in person was no more than a procedural ruling about the manner in which the upcoming trial will be conducted. The ruling, albeit styled as an order, did not determine any right enjoyed by the applicant.
The applicant apparently wants to cross-examine the father in person but, aside from her desire, she has no right to do so. The applicant only has a right to a fair trial, which right is not lost by denying her the chance to personally cross-examine the father (Naparus & Frankham (2020) FLC 93-943 at [16]–[21]) (“Naparus & Frankam”). The invocation of s 102NA(2) of the Act means the applicant enjoys an automatic entitlement to legal representation at trial under the State legal aid scheme, so her appointed lawyer will cross-examine the father. Objectively, she loses nothing by the ruling.
The applicant’s contention that the ruling was made in error is beside the point. If the ruling is not a “judgment”, it is not amenable to appeal.
The applicant submitted that it was “an error of jurisdiction” for the primary judge to “exercise judgment regarding interim orders not based on any application before the Court”, but the absence of any application by the parties for the order made by the primary judge makes no difference. The Act empowered the order at her Honour’s initiative (s 102NA(3)(a)).
The central plank of the applicant’s proposed appeal is that the subject order was made without her being given the chance to be heard and, therefore, was the product of a denial of procedural fairness. Even if that is accepted as true, the error – whether it be jurisdictional error or simple legal error – is immaterial if no appealable judgment results. Any appeal from the eventual judgment determining the justiciable cause can pick up manifest error caused by interlocutory orders (s 36(5) of the FCFCA Act.
But even if it be assumed in the applicant’s favour that the order constituted a judgment which could be appealed, subject to leave, for the reasons embraced in Naparus & Frankham she identified no “substantial injustice” resulting from the order to arguably justify the grant of leave to appeal. The injustice alleged by the applicant was to the effect that she may discharge the legal representation appointed for her under the State legal aid scheme, which would then expose her to the prohibition against personally cross examining the father. But it cannot be said any injustice at all, let alone substantial injustice, currently exists by reason of such a possibility.
Cross-examination is a process requiring skill and knowledge of often complex rules of evidence. It requires some intellectual rigour and intense concentration to be effective. That does not mean litigants in person cannot themselves cross-examine, but it often means they will be at a disadvantage if representing themselves in trying to do so effectively. One evident purpose of an exercise of the discretion in s 102NA(1)(c)(iv) is to protect victims of family violence from being subjected to cross examination by perpetrators directly. An evident purpose of the State legal aid scheme is to bring efficacy to s 102NA(2) by bestowing on unrepresented litigants the benefit of representation at public expense to enable cross examination to take place on their behalf by a professional qualified to do so. Both purposes promote justice.
Litigants often decide to sack or change lawyers for a variety of reasons, including in proceedings in which an order has been made pursuant to s 102NA(1)(c)(iv). Whatever the consequences, and if they are adverse to the litigant, it is because of the voluntary decision to do so at that point in time, not because of the original order requiring them to be represented. Indeed fresh representation may be obtained.
The proposed appeal lacks “reasonable ground” because it is misconceived. It is therefore vexatious (s 102Q(1)) and the application for leave to bring it must be dismissed (s 102QF(2)). At the very least, the applicant fails to show the proposed appeal is not vexatious (s 102QG(4)).
Having considered the applicant’s evidence and submissions, as permitted by the Act (s 102QF(3) and s 102QF(4)), the application for leave to appeal is dismissed without an oral hearing by an order made in chambers.
RIETHMULLER J:
I have had the advantage of reading the reasons of Austin and Harper JJ and adopt the summary their Honours set out in paragraphs [1] to [14]. I also note that there is no evidence of the father’s attitude to the s 102NA order (for example, whether he would consent to its discharge) as the application for leave to institute the proceedings is not to be served upon him pursuant to Pt XIB of the Act until after the Court determines whether to dismiss the application pursuant to s 102QF of the Act.
I am unable to agree with the orders proposed by their Honours, for the reasons I set out below. I am also of the view that it is appropriate to make a finding as to whether the applicant “substantially complied” with s 102QE(3)(b) of the Act in order to highlight the need for law reform (or at least amendment to the Court rules) in order to achieve what was identified in the Explanatory Memorandum as the purpose of the section.
Has the applicant substantially complied with s 102QE(3)?
The applicant is subject to an injunction pursuant to the Vexatious Proceedings provisions in Pt XIB of the Act, prohibiting her from instituting proceedings under the Act without leave. To obtain leave she must comply with s 102QE(3)(b) of the Act, which relevantly requires that:
(3) The applicant must file an affidavit with the application that:
…
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section …
At paragraph 13 of her affidavit filed 29 June 2023, the applicant identifies many previous proceedings she has instituted in two groups. In paragraph 13(b), she enumerates 34 subordinate paragraphs, which appear to list around 44 applications. Whilst most items in the list meaningfully describe the various applications in an appropriately brief form, she describes her applications lodged in the High Court as simply:
13. …
(b) ...
xi. Applications to the High Court in 22 June 2021 which were not successful
The applicant lists her various appeals to this Court as simply:
13. …
(b) ...
xii. Appeals NOA 2, 3, 18 and 09, 39, 83/2019 which were dismissed with the exception of NOA 09 where they made an order to return property, NOA 66/2016 (abandoned), Appeal NAA 74/2023 dismissed on technicality, NAA 172/2023 Application for Leave to Appeal
The purpose of the provision was described in the Explanatory Memorandum to the amending Act, the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) as follows:
236. This information is designed to ensure that the applicant makes full disclosure of relevant information to assist the court in reaching a decision as to whether to grant leave to the applicant to institute the proceedings.
To achieve the purpose, as described in the Explanatory Memorandum, the applicant would need to list all of the proceedings that she has brought, providing a clear and brief identification of the nature and outcome of each application. Simply listing nine different appeal file numbers fails to provide a meaningful list of those proceedings for the effective consideration by the court that is being asked to grant her leave to institute further proceedings. However, the legislative provision only requires that she “lists” the proceedings, not that she provide a brief description of the nature and outcome of each proceeding.
On the current wording of s 102QE(3) of the Act, I consider that the applicant has sufficiently listed her previous applications to achieve “substantial compliance” with the legislative requirement, thus the power to dismiss the application pursuant to s 102QF(1) of the Act does not arise. Legislative amendment (or at least rules of Court) setting specific requirements for affidavits in such applications may be called for in this regard.
Are the proposed proceedings vexatious?
The two issues apparent on the face of the material that should be considered to determine whether this proposed appeal is “vexatious” are: first, whether there are reasonable grounds for arguing that the order is appealable; and secondly, whether the proposed application for leave to appeal has reasonable grounds and is not an abuse of process.
Are there reasonable grounds to argue that an order made pursuant to s 102NA(1)(c)(iv) is appealable?
Section 102NA of the Act provides for limitations upon the right of parties cross-examining each other personally in cases involving family violence in the following terms:
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.
If the case falls within s 102NA(1)(c)(i)–(iii) of the Act, the limitation is imposed by operation of the statute without a Court order. If the case falls within s 102NA(1)(c)(iv) of the Act, a judge must determine whether or not to make an order that s 102NA(2) of the Act is to apply. The present proceedings concern an order made under s 102NA(1)(c)(iv) of the Act.
Until 2021, the right to appeal against orders made pursuant to the Act was as set out in s 94 of the Act. Section 94 provided for an appeal from a “decree”. The definition of a “decree” made no reference to “interlocutory orders”, only providing that a “decree” means, in alia, “decree, judgment or order” (See s 4 of the Act).
The wording of the provision was interpreted as imposing restrictions upon the types of order that could be the subject of appeal, limiting appeals to “decrees” that determined the proceedings or an identifiable part of the proceedings (See, eg, Kabat & Garacia [2019] FamCAFC 191 and the cases cited therein).
In 2021, s 94 of the Act was repealed and appeals were provided for in s 28 of the FCFCA Act. Section 28(1) of the FCFCA Act provides for appeals from “a judgment” with the term “judgment” defined more broadly in s 7 of the FCFCA Act as:
… a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.
Interlocutory orders are now expressly within the definition of a “judgment”. Although, importantly, appeals from many interlocutory orders can only be brought with leave, and appeals are prohibited with respect to some limited types of orders (See s 26 and s 28 of the FCFCA Act, and reg 4 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)).
The appeal provisions in the Federal Court of Australia Act1976 (Cth) (“the Federal Court Act”) are in similar terms, providing for appeals from “judgments” (s 24) and defining “judgments” to include interlocutory orders (s 4). The appeal provisions in the Federal Court Act do not appear to have been interpreted as limiting appeals to the extent that s 94 of the Act was interpreted (although the requirement to obtain leave to bring an appeal from an interlocutory order is carefully imposed). Aside from Cabal v United Mexican States (No 3) [2000] FCA 340 and Lawrance v The Commonwealth of Australia [2007] FCA 1524, it is difficult to find cases where an order was not appealable (at least with leave) in the reported Federal Court decisions. The breadth of these appeal rights stands in contrast to the very narrow appeal rights provided for in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
The High Court, in Ex parte Bucknell (1936) 56 CLR 221, considered the meaning of s 35(1) of the Judiciary Act1903 (Cth) (“the Judiciary Act”). At that time, s 35(1) of the Judiciary Act imposed limits on appeals from interlocutory orders (one of which was that the order was in respect of a matter in issue of at least £300). The High Court noted that the practical limit related to the amount in issue, not that such orders may not be appealable, saying:
An interlocutory order affecting only the course of proceedings in an action or suit can seldom fall within the prescribed classes of sec. 35(1). For example, it is difficult to imagine orders relating to interrogatories, discovery, examining witnesses out of court, the giving of particulars, or like procedural matters, prejudicing a party to the extent of £300.
Whilst a “tight rein” must be kept on appeals concerning practice and procedure (as identified in the often cited passage by Sir Frederic Jordan in Re the Will of Gilbert (1946) 46 SR (NSW) 318) orders as to questions of practice and procedure are commonly treated as appealable interlocutory orders under modern statutes providing for appeals (See, eg, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364 (dismissal of an application to strike out part of a pleading); Jess & Jess (No 3) [2023] FedCFamC1A 2 (orders for a separate hearing on a question); Maclean v Brylewski [2022] NSWCA 217 (setting a case for hearing); and Dupois v Queensland Police Service & Anor [2023] QCA 44 (orders adjourning a case for directions by a judge in a particular list).
As a matter of ordinary usage, an “interlocutory order” is any type of order that is not a final order. This is reflected in the definition in r 1.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“FCFCA Rules”) where an “interlocutory order” is defined as meaning:
(a) an interim order; or
(b) a procedural order; or
(c) an ancillary order; or
(d) any other incidental order relating to an application or order.
Despite the breadth of the term “interlocutory order”, it is established that rulings made during the course of a trial are not generally “interlocutory orders” amenable to appeals. The principle underpinning this approach is the importance of preserving the continuity of a trial against interruptions by appeals against the trial judge’s rulings made during a hearing. As was said, in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303, by Gleeson CJ:
One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.
There are four relevant features of an order pursuant to s 102NA(1)(c)(iv) of the Act that should be noted in this context. First, the legislature framed s 102NA(1)(c)(iv) in terms that require an “order” and not a “direction”, indicating a statutory intention that such orders be open to appeal. Secondly, the order is not to permit a course, but is directed to prevent a litigant from cross-examining the other party personally. Thirdly, it is an order that is necessarily made at a time well before trial, to enable legal aid to arrange limited funding for a representative for each party (should they not have their own lawyer) and is therefore not part of the immediate trial process. Fourthly, if such an order were discharged during a trial, it would likely result in the adjournment of the trial to allow the party time to properly prepare in order to take over the cross-examination.
The legislature’s decision to frame the provision as requiring an “order” rather than a mere “direction” is significant in light of the potential, albeit slight, of a judge erroneously refusing to make an order under the section. If an order under s 102NA(1)(c)(iv) of the Act is not appealable then such an error could give rise to a victim of family violence having no right to appeal the order before suffering the potential trauma of personal cross-examination. This is unlikely to have been the intention of the legislature in a provision enacted for the purpose of protecting victims from such trauma.
In my view, the applicant has an arguable case that the appropriate categorisation of the “order” in this case is an appealable “interlocutory order” within the meaning of s 28 of the FCFCA Act (subject to leave to appeal being granted).
Has the applicant demonstrated reasonable grounds for the proposed application for leave to appeal?
In order to obtain leave to appeal, the applicant must demonstrate that the decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration and that if leave were refused, a “substantial injustice” would ensue (See Medlow & Medlow (2016) FLC 93-692).
The applicant argues that the decision is “attended by sufficient doubt” to warrant its reconsideration as the primary judge failed to afford her an opportunity to be heard. The applicant says that this denied her the opportunity to express her opposition to the order, based upon the argument that a relevant factor in the exercise of the discretion is whether the victim (or alleged victim) of family violence opposes such an order. The applicant was identified by the primary judge as the victim of family violence, however, the applicant opposes the order that was made pursuant to s 102NA(1)(c)(iv) of the Act. In my view, there is a real chance that consideration of her submissions could result in a different outcome.
The failure to afford the applicant an opportunity to be heard (at least by way of written submissions) results in a clear prima facie case of legal error demonstrating that the decision is likely to be attended by sufficient doubt to warrant its reconsideration.
For the applicant to obtain leave to appeal the s 102NA(1)(c)(iv) order, she would also need to show that the order would effect a “substantial injustice” in the circumstances of the case. The loss of the opportunity to cross-examine is a real limitation upon the applicant and a significant factor in determining whether there is a fair trial. Whilst the “Commonwealth Family Violence and Cross-examination of Parties Scheme” is available to provide representation to those affected by the operation of s 102NA of the Act, the applicant argues that the scheme does not sufficiently ameliorate the effect of the provision. The applicant relies on the relevant scheme application form (a copy being annexed to her submissions) which contains a requirement that the recipient of a grant of aid under the scheme “must … accept the advice of the practitioner appointed to act for them”. This condition would result in the revocation of aid if the applicant were to take a different view about how to best present the case (or whether to accept an offer to settle the matter) from that of her appointed legal practitioner and she were to instruct the practitioner to act contrary to that practitioner’s advice, even if the instructions did not require the practitioner to act inappropriately or unethically. Thus, the effect of s 102NA of the Act (even as ameliorated by the scheme) may result in the applicant having no ability to cross-examine the father by way of questions that a lawyer could appropriately and ethically put, but which are contrary to the appointed lawyer’s advice. The extent of this risk must be a relevant consideration when making an order pursuant to s 102NA of the Act, particularly where, as in this case, it is the alleged victim of family violence (whose children are presently residing with the other party) who opposes the order. On the limited material before the Court at this stage, I am persuaded that the applicant has shown an arguable case of substantial injustice.
As the order was made in the absence of the applicant, she would have been able to apply (pursuant to r 10.13 of the FCFCA Rules) to have the order set aside on the basis that it was made in her absence. It is clearly preferable that an applicant exercise her rights at first instance before seeking leave to appeal. The availability of this alternative, more appropriate, and far less expensive, remedy usually shows that the order does not effect a “substantial injustice” and therefore does not warrant a grant of leave to appeal (See Wilkes and Wilkes (1981) FLC 91-060; Lorde & Chu [2014] FamCAFC 228; Singam & Moffrey [2015] FamCAFC 42; and Fierro & Fierro (No 8) [2023] FedCFamC1A 28).
However, in the present proceedings, the applicant says that she raised her complaint with the primary judge who confirmed that the s 102NA order was made and asked if an application to seek leave to appeal had been filed, yet made no mention of the possibility of setting aside the order pursuant to r 10.13 of the FCFCA Rules. The applicant has articulated an arguable case that the primary judge appears to have considered that the applicant’s only choice was to pursue an appeal (See Lorde & Chu [2014] FamCAFC 228 at [37]).
In the unusual circumstances of this matter I am persuaded that the applicant has raised an arguable case that the orders effect a substantial injustice.
Conclusion
For these reasons I would make orders pursuant to s 102QG(1) of the Act for the application and supporting material to be served upon the father for a hearing pursuant to that provision.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Harper & Riethmuller. Associate:
Dated: 2 August 2023
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