DELANCY & THEOBALD
[2019] FCCA 3852
•7 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DELANCY & THEOBALD | [2019] FCCA 3852 |
| Catchwords: FAMILY LAW – Practice and procedure – application of s102NA Family Law Act 1975 (Cth) – rationale of this provision. |
| Legislation: Family Law Act 1975 (Cth), s.102NA. |
| Applicant: | MS DELANCY |
| Respondent: | MR THEOBALD |
| File Number: | WOC 113 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 7 November 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr Harper |
| Solicitors for the Respondent: | Meehans Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Stolier |
| Solicitors for the Independent Children's Lawyer: | Mark Whelan Lawyer |
ORDERS
Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim Orders be made in accordance with the document marked “A” dated this day 7 November 2019 and attached hereto.
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 Applicant must not cross-examine the Respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Applicant.
Within 7 days, the Applicant complete the “Scheme Application Form” and provide to Legal Aid NSW ([email protected]) for the allocation of a legal practitioner.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days notice by application to the Court in Chambers in appropriate circumstances.
The matter be adjourned for a 1 day Final Hearing on 4 May 2020 at 9:00am.
THE COURT NOTES THAT:
A.Pursuant to s.102NA(1), there is an allegation of family violence between the Applicant and the Respondent.
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 Applicant 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.
IT IS NOTED that publication of this judgment under the pseudonym Delancy & Theobald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
“A”
Pending Further Orders:
That the mother shall undergo hair drug testing on four occasions each calendar year and for that purpose:
1.1The collection shall be between
1.1.115 and 22 January
1.1.215 and 22 April
1.2The testing shall be at the expense of the father.
1.3The mother shall undertake a hair drug test with Australian Workplace Drug Testing (AWDTS) of her head hair which is:
(a)Not less than 4cm in length and collected from as close to the scalp as possible
(b)Not bleached, coloured or dyed
(c)Collected in a chain of custody fashion by a qualified and certified collector
(d)Tested by an approved laboratory accredited to conduct hair drug testing to the recognised International Standard ICO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
(e)That the testing has been for drugs of abuse including but not limited to amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites.
That the mother undergo random urine testing not more than once per calendar month at her expense and for that purpose:
2.1drug testing shall be by urine screen in accordance with the Australian/NZ standard 4308:2008 (or any subsequent approved standard) chain of custody urinalysis for drug screening
2.2The mother shall provide the sample for testing within 48 hours of receiving a request from the ICL
2.3That the mother shall provide the test results to the father and the ICL within 24 hours of them being available to her.
That other than any contribution which the ICL may be able to secure from Legal Aid the father shall be liable for and meet the costs of the attendance of Dr A at Court on 7 November 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 113 of 2017
| MS DELANCY |
Applicant
And
| MR THEOBALD |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The matter was listed before me for Hearing. It is an application that relates to a child in circumstances where the child currently lives with the Father and spends time with the Mother. By way of broad background there have been concerns, certainly historical and possibly ongoing, about whether the Mother presents a risk of harm to her child based on matters including usage of illicit substances.
The Mother, who is representing herself today and who has only recently become unrepresented, is seeking an order for equal shared parental responsibility and equal time. The Father’s proposal is significantly different and, in fact, evidence of recent drug use by the Mother suggests that he is adopting a more rigid approach about contact until such time as the Mother can establish that she is drug free.
The Mother brings an application under section 102NA of the Family Law Act 1975 (Cth) (herein referred to as ‘the Act’). In effect, she asks for the Hearing to be adjourned so that she might take advantage of the possibility of obtaining legal representation pursuant to the scheme that is established as a result of the passing of section 102NA of the Act. The section provides:
S102NA
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.
I am satisfied that, firstly, the Mother falls within the class of people who would be captured by the term ‘examining party’ and ‘witness party’. She has taken me during the course of this morning to a number of provisions in her Affidavits that contain allegations of family violence. The oldest, but perhaps clearest, is back in 2009. There are more recent instances in 2017. To the extent that the Mother sought to rely on an unsworn affidavit of a Ms B, I place no weight on that evidence in the context of ascertaining whether there is an allegation of family violence for the purposes of s102NA(1)(b) of the Act. I am satisfied from the other matters that she has taken me to that s102NA(1)(b) of the Act is, in fact, established.
The section requires me to then consider s102NA(1)(c) of the Act, and that contains a number of subparagraphs. The only relevant one for present purposes is s102NA(1)(c)(iv). Just to be clear, I am satisfied that neither s102NA(1)(c)(i), s102NA(1)(c)(ii) or s102NA(1)(c)(iii) of the Act apply to the facts of this case. In effect, the Mother is asking me to make an order that the requirements of s102NA(2) are to apply to the cross-examination, and that is the issue that the Court has to decide.
The Mother is representing herself. The Father is represented by both Solicitor and Counsel. The reality of this case is that if I do not grant the Mother’s application and make the order, the Mother would not be able to cross-examine the Father, but the Father would be able to cross-examine the Mother. That is significant particularly in a case where there are issues about drug abuse, the risk of relapse and the potential impact on the child in question.
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?
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.
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.
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.
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.
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.
In the circumstances, the best that the Court can do is to accept that section 102NA of the Act does, in fact, apply, and, accordingly, the Court will make an order under s102NA(2)(b) that the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party. The Court is fully conscious of the consequences of its determination. It means that this Final Hearing will be adjourned to some future date. Ironically, for the Mother, it means that there is a postponement of the very thing that she seeks, and that is more time and less conditions on her time with her son, but so be it.
Accordingly, I make the order, and that means that for present purposes, the Final Hearing of the matter is, in fact, adjourned to a future date.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 19 February 2020
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