Ellis & Deacon
[2022] FedCFamC2F 306
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellis & Deacon [2022] FedCFamC2F 306
File number: AYC 238 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – section 102NA – whether section 102 applies – personal protection injunction – non-denigration order is an order for personal protection – orders made. Legislation: Family Law Act 1975 (Cth) s 102NA. Cases cited: Middleton & Redmond [2021] FCCA 316
Re F: Litigants in Person Guidelines (2001) FLC ¶93 072
Stopford Malloy & Malloy (No.3) [2021] FamCA 284
Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 6 December 2021 Place: Melbourne (in Chambers) Counsel for the Applicant: Ms S Mariole Solicitor for the Applicant: Coombe Lawyers Solicitor for the Respondent: No solicitor on the record ORDERS
AYC 238 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ELLIS
Applicant
AND: MS DEACON
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.Order 29 of the orders of 6 December 2021 be and is discharged.
2.It is declared that pursuant to section 102NA(1) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Respondent Mother, Ms Deacon under the cross-examination scheme.
3.Pursuant to order 2 hereof, the Respondent Mother 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 to enable his/her legal representation at Final Hearing.
AND THE COURT NOTES THAT:
A.The relevant application referred to in order 3 hereof is available to the parties at by the time order 29 of 6 December 2021 was discharged no request as contemplated had been made to Victoria Legal Aid.
C.The matter is listed for final hearing in the Albury Circuit sittings of this court in the week commencing 11 July 2022.
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 Ellis & Deacon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This decision concerns whether I must prohibit the respondent mother Ms Deacon (‘the Mother’) from cross-examining the applicant father Mr Ellis (‘the Father’) when their dispute about the living arrangements for their children comes to final hearing. If I do make an order prohibiting that cross examination then I would make a request to Victoria Legal Aid to nominate and fund a lawyer for the purpose of cross examination at final hearing. The proceedings are listed in the Albury circuit sittings of the court.
The background to this decision is as follows. On the 21 May 2021 the Father filed an initiating application seeking that the parties have equal shared parental responsibility for their child X then aged four (‘the child’) and that the child live with the Mother and spend time with the Father on each alternative weekend and overnight on each Wednesday and on special days. That application alleged that the Father was 50 years of age, the Mother was then 49 years of age, that the parties commenced cohabitation in 1994 and separated in July 2020.
By her Response and affidavit filed 29 June 2021, the Mother, as a litigant in person, alleged that the Father's behaviour to her, including in the child's presence, is unpredictable and at times aggressive (and if true would constitute family violence) and that he has on occasions failed to return the child after she had agreed for him to spend time with his father and that is motivated to cause her inconvenience. She says that she wishes to protect the child from the conflict and aggression of the Father at changeover and that it became necessary at one point to stop the child spending time with his father. The Mother is also concerned about the Father's state of mind and alleges that she has endured 4½ years of abuse from the Father and that the Father denigrates her to the child.
On 12 July 2021 interim orders were made by consent before Judge Mercuri (as her Honour then was) that provided for the parents to have equal shared parental responsibility for the child, the child to live with the Mother and spend time with the Father alternative weekends and each Wednesday overnight as well is special occasions. The matter was adjourned to 6 December 2021 for directions hearing. Also on that day at order 13 it was ordered by consent that:
13.Each party be restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
On 6 December 2021 I was asked to make orders that the parents attend a family dispute resolution conference with a view to avoid further litigation but I was also asked to fix the matter for final hearing and to order a family report. On each occasion before the court the mother has represented herself. I fixed the matter for final hearing and ordered a family report.
The allegations of family violence necessarily trigger a consideration of section 102NA of the Family Law Act 1975 (Cth) ('the Act') when a final hearing is being considered.
In Middleton & Redmond [2021] FCCA 316 I described scheme of that provision, and to save time it is convenient that I adopt that description again and recite [30] to [35] of that decision.
[30]Section 102NA(1) has three limbs, (a), (b) & (c) and the third limb, (c), has four branches. Each limb must be found to apply but any of the four branches of the third limb is sufficient for that limb to apply. The fourth branch of the third limb gives the court a discretion to order a ban on personal cross examination whether or not any of the other three (of the four branches) apply provided the first two limbs are satisfied. Section 102NB is a related back up provision. If sections 102NA(1) & (2) do not apply and a party intends to cross examine and there is an allegation of family violence then the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim of family violence. Sections 102NA and 102NB provide a cascading scheme of provisions where there is an allegation of family violence and a party intends to cross examine another party personally. If the more stringent or serious conditions of 102NA(1) are met the ban on personal cross examination and the obligation for cross examination to be conducted by a legal practitioner is mandatory and at public expense. If the stringent conditions of section 102NA(1) are not met but there is an allegation of family violence and a party intends to cross examine another party then section 102NB provides that the court must still ensure there are appropriate protections for the party who is alleged to be the victim of family violence in every case.
[31]Section 102NA is as follows:
(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.
[32]Section 102NA lives in Division 4 of Part XI of the Act with which was inserted by Act 159 of 2018, the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) (‘the Amending Act’) and effective from 10 March 2019. The Amending Act did not recite a purpose but it is largely self-evident from the terms of the legislation and the Explanatory Memorandum for the Amending Act. I have referred to the Explanatory Memorandum in accordance with section 15AB(1) and (2) of the Acts Interpretation Act 1901 (Cth). I have taken into account the whole of the Explanatory Memorandum but relevant parts include the following.
[33] Paragraph 6 of the General Outline of the Explanatory Outline states:
6.It is important that any ban (on cross examination) balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.
[34]Paragraph 13 Explanatory Memorandum under the heading Statement of Compatibility with Human Rights, states as follows:
13.The purpose of the Bill is to protect victims of family violence from the trauma of being cross examined personally by perpetrators and promote their access to justice. Personal cross examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to cross examine their alleged perpetrator personally. Therefore prohibiting personal cross examination in family law proceedings where there are allegations of family violence promotes victims right to a fair hearing.
[35]At paragraph 12 of the Explanatory Memorandum under that same heading it is stated:
12.What constitutes a fair hearing requires recognition of the interests of all parties in a civil proceeding. The procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.
The first limb: section 102NA(1)(a) … intends to cross examine…
When considering section 102NA the court will usually have one or more litigants appearing in person. Not infrequently a litigant in person demonstrates that he or she does not have an understanding of what is involved in or meant by the term 'cross examination', or the consequences in a case involving contested evidence of not cross examining the other parent. The usual way that evidence of a parent is challenged by the other parent is by providing the contrary evidence by affidavit or tender document and by cross-examining the other parent about that evidence that is challenged.
Not infrequently a litigant in person, when asked whether he or she intends to cross examine the other parent, will advise the Court, "no" or "I don't think so" or "I don't know". Again not infrequently, where the enquiry is put in terms of, "do you intend to challenge the evidence or allegations of the other parent?", the litigant in person frequently changes that response to, "definitely" or "yes I do". The settled law of the obligations of a Judge described in Re F: Litigants in Person Guidelines (2001) FLC ¶93 072 at [253], likely compel a judge to make the enquiry of section 102NA(1)(a) in those wider terms as otherwise the litigant in person may not be making an informed statement about his or her intention to cross examine.
In this case I was satisfied after enquiry that the litigant in person, the Mother, did intend to cross examine the Father at final hearing.
The second limb: section 102NA(1)(b) … There is an allegation of family violence…
In this case I was satisfied that there is an allegation of family violence.
The third limb, 1st branch: section 102NA(1)(c)(i) … convicted or charged with violence…
The parties told me that this provision did not apply and I accepted that.
The third limb, 2nd branch: section 102NA(1)(c)(ii) … (final) family violence order…
The parties told me this provision did not apply and I accepted that.
The third limb, 3rd branch: section 102NA(1)(c)(i), injunction for personal protection…
At first brush the parties did not submit that this provision applied notwithstanding [13], recited above, of the July 2021 consent orders. I raised with the parties my tentative view that the non-denigration order at [13] would qualify this provision. I posited, in argument only, that on one view knowing or believing that the other parent was denigrating him or her to the child would or could be very damaging to a person's emotions and hence stopping that would be a form of "personal protection". If the non-denigration order at [13] was an injunction for the personal protection of a party then the three limbs of the section 102NA scheme was satisfied or fulfilled and by section 102NA(2) the examining party, in this case the Mother, must not cross examine the witness party, in this case the Father, personally, and the cross examination must be conducted by a legal practitioner. If the three limbs are satisfied there is no discretion.
When I raised the circumstances that the non-denigration order may qualify the third branch of the third limb as an injunction for the personal protection of a party that concept was embraced by the parties because of the advantage to each of the Mother being represented. That litigation is more likely to resolve by agreement and/or run more smoothly with less expense to the represented party, when an otherwise litigant in person is represented, is not by any stretch a purpose of the section 102NA scheme and would not justify a section 102NA order. I was concerned that there was no genuine contradictor as to the concept or proposal I raised where an order prohibiting cross examination is a very serious restriction on the usual way that a litigant in person would be free to conduct his or her case and, if the section 102NA order was made, public funds via Victoria Legal Aid would likely be expended on representing the litigant in person. In that circumstance I made order 29 which was as follows;
VLA request as contradictor
29.The associates to Judge O'Shannessy are directed to write and provide a copy of this order to the director of Legal Aid Victoria providing the opportunity to make written submissions as to the meaning of section 102 NA(1)(c)(ii) (68B or section 114 injunction) and whether a standard non-denigration order is an injunction for the personal protection of a party.
At the time of making that order I was not aware of, and had not considered, the decision of Harper J in Stopford Malloy & Malloy (No.3) [2021] FamCA 284 (‘Stopford Malloy & Malloy’). However no harm was done as before I could settle the terms of the letter to Victoria Legal Aid, counsel for the Father, Ms Mariole, properly brought that decision to my attention and to the attention of the Mother. The email enclosing that decision will be marked exhibit F1 7.02.2022. I regard that decision, of the Family Court of Australia as that court then was, as binding on me and if I am wrong about that, as highly persuasive.
In an extensive review of the law, applicable authorities, purposes and application of the section 102NA scheme Harper J set out existing authority on this very point at [49] to [54] as follows:
[49]There is no definition of an injunction made for the “personal protection” of a party in the Act. There are surprisingly few authorities on “the issue of the personal protection of a party to the marriage”: Cross & Cross [2007] FamCA 387 (“Cross”) at [21].
[50]However, the ambit of the expression “personal protection” has been the subject of some judicial comment in the last forty years. There is early authority which tends to equate orders for personal protection with “non-molestation orders” and physical integrity. In Murkin & Murkin [1980] FamCA 13; (1980) FLC 90-806; (1980) 5 Fam LR 782 (“Murkin”), Nygh J heard a dispute as to whether an injunction to freeze any disposition of superannuation funds could be made pursuant to s 114(1) of the Act. In submissions, counsel for the wife suggested that the orders would be made for the “personal protection” of the wife, because such an injunction would protect her personal rights. Nygh J rejected these submissions at 75,082, saying:
I do not agree with [counsel] that the right, if it exists at all, comes within the description of ‘personal protection’. If his argument is correct, the reference to the property of the parties would be superfluous, for every right is personal. The logical inference from the words as used in sec 114(1) is that the words ‘personal protection’ refer to the protection of the physical integrity of a party such as are secured by non-molestation orders. (Emphasis added).
[51]There is an old tradition in matrimonial law of equating molestation with the act of ‘annoying’ someone. An act was considered to be a molestation if it was “done with the intent to annoy, and does in fact annoy...”: Fearon v Earl of Aylesford [1884] UKLawRpKQB 200; (1884) 14 QBD 792 (“Fearon”), at pp 801-802, followed in Moio & Moio [1984] FamCA 43; (1984) FLC 91-575 at p 79,652.
[52]However, in English & English [1986] FamCA 69; (1986) FLC 91-729, the parties had given mutual undertakings to the Court that “they will not annoy, interfere with, assault, molest or harass the other party or cause that party to be annoyed, assaulted, molested or harassed”. The husband claimed the wife had committed contempt by breaching the undertaking, on the basis of allegations which he claimed “annoyed” him. It is unnecessary to set out the detail of the allegations. The Full Court of the Family Court differentiated “molest” from “annoy”. The Full Court expressed the view that “annoy” is a subjective term, and concept of “annoy” is so wide and obscure that it should not be used in injunctions. On the other hand, “harass” and “molest” possess an element of objective, discernible conduct: at p 75,296.
[53]Nygh J’s description of a personal protection injunction as “the protection of the physical integrity of a party” was considered in Wilmoth & Wilmoth [1981] FamCA 27; (1981) FLC 91-030; (1981) 6 Fam LR 807, and by the Full Court in Kemsley & Kemsley [1984] FamCA 24; (1984) FLC 91-567; (1984) 10 Fam LR 125 (“Kemsley”). These decisions both make it clear that s 114(1) should be construed broadly. Personal protection injunctions need not be limited to physical protection; rather, they include “such matters as the protection of [a party’s] right to lead [their] own life without undue interference from the [other party]”: Kemsley at 79,590.
[54]There is authority which suggests that an order restraining denigration of a party is an order for that party’s personal protection pursuant to the Act. Plows & Plows [1979] FamCA 77; (1979) FLC 90-712; (1979) 5 Fam LR 590 (“Plows & Plows”) was a case about raising children a religious sect called the Plymouth Brethren. In the Full Court, Wood SJ referred to the decision of K v K (1979) FLC 90-680 (K v K”) in the Supreme Court of NSW, in which Toose J made a non-denigration order restraining both parents, who were members of the Exclusive Brethren sect. Wood SJ proposed orders restraining each party from denigrating “the other or the other's beliefs to the children and that they not permit any person to do so”. From the report, it does not appear that this was the subject of any sustained argument, and there was no discussion of the jurisdictional basis for such an order. However, no later authority suggests these authorities are wrong in this regard.
Harper J concluded thus at [64]:
[64]On the basis of this discussion of the authorities, I conclude that the concept of personal protection in ss 68B, 114(1) and 102NA(1) is broad and open ended, and an injunction for the personal protection of a party includes, non-exhaustively, the following types of order:
•An order which protects the physical integrity of a party: Murkin; Oates;
•An order which restrains one party from denigrating the other, or parties denigrating each other: Plows; K v K;
•An order protecting the right of one party to lead their own life without undue interference from the other party, including interference with the employment or business or social life of the other party: Kemsley;
•An order designed to safeguard a party’s mental or emotional wellbeing: Kemsley; Modlin
•An order restraining one party from communicating with the other party other than through that party’s lawyers: Oates; and
•An order which protects a party from intimidation, harassment and infringement of their right of privacy, including by surveillance: Cross.
(emphasis added)
There is no suggestion or evidence of contrivance between the parties for the making of the non-denigration order for the purpose of providing free legal representation to one them. With the benefit of Stopford Malloy & Malloy it is now clear that putting Victoria Legal Aid and the parties to the trouble of making or considering submissions as contemplated by my order 29 would be otiose: the question has already been determined by Harper J. Hence I will order that order 29 be discharged and note that no such request was actually made to Victoria Legal Aid.
The parties are shortly to attend family dispute resolution and if agreement is reached the existing orders for trial directions and family report can be vacated.
In the circumstances where the nuts and bolts of section 102NA as applicable has been discussed on 6 December 2021 it is unnecessary that I put the parties to the trouble and expense of further considering this issue in light of the decision by Harper J and I will make the usual order in chambers where section 102NA applies. Because of the non-denigration order section 102NA(i) applies. I will prohibit the Mother from personally cross-examining the Father and request Victoria Legal Aid to appoint a lawyer for the Mother at final hearing.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 18 March 2022
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