FRASER and LAFAYETTE

[2020] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FRASER and LAFAYETTE [2020] FCWA 43

CORAM: O'BRIEN J

HEARD: 17 MARCH 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 5793 of 2016

BETWEEN: MS FRASER

Applicant

AND

MR LAFAYETTE

Respondent

Catchwords:

PRACTICE AND PROCEDURE – operation of mandatory ban on personal cross examination pursuant to s 102NA of the Family Law Act 1975 (Cth) - where a final family violence order is in place – where the alleged perpetrator of family violence has been granted assistance under the Commonwealth Family Violence and Cross-examination of Parties Scheme and the alleged victim has not - whether a trial can fairly proceed where a mandatory ban applies and one party is unable to secure representation – considerations to be applied if, as asserted, the refusal of assistance under the Scheme is based on a determination that the relevant party has the means to fund private representation.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms B

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Law Firm A

Case(s) referred to in decision(s):

Browne v Dunn (1893) 6 R 67

Buchwald v R (2011) 38 VR 199

Dietrich v R (1992) 177 CLR 292

Director of Public Prosecutions (DPP) (WA) v Williams [2007] WASCA 206

LC & TC (1998) FLC 92-803

Lee v The Queen (1998) 195 CLR 594

Re F (litigants in person guidelines) (2001) FLC 93-072

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fraser and Lafayette has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The parenting and financial proceedings between the parties are listed for a trial to commence before me not before 20 April 2020. They come before the court today for a number of reasons.

2Firstly, the husband filed a Form 2 application on 6 March 2020 seeking that both parties have the opportunity to file updating evidence, given that their trial affidavits were filed in late 2018. That application is non-contentious.

3Secondly, potential issues arise as on 16 January 2020 a Magistrate correctly noted that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) will apply to any cross-examination occurring in the proceedings, as a final conduct agreement order is in place against the husband for the protection of the wife.

4Thirdly, an Independent Children’s Lawyer (“the ICL”) has now been appointed, but has only very recently been engaged. Understandably, she has not had the opportunity to take the steps she would seek to take to ensure that adequate evidence is before the Court to enable a proper determination of what parenting orders are in the best interests of the parties’ only child, [A] who is four and a half years old. She told me that she seeks the opportunity to obtain an updated report from the Single Expert Witness, [Dr W], who is available to prepare a report in time for trial, provided there is the required cooperation from the parties.

5Fourth, the parties have not, on the file at least, defined in any way the relief which they seek in either the parenting or the financial case. That said, I am told by the wife today that she has filed a Minute as ordered by [the Court]; it does not appear to have reached the file at the time of delivering these reasons.

6Fifth, the husband indicated in the form which he filed seeking an exemption from the payment of fees that he is presently bankrupt. If a party to proceedings for the alteration of property interests becomes bankrupt during the course of those proceedings, he or she is obliged to give notice of the proceedings to the relevant Trustee. The Trustee is then entitled to apply to the court to be joined as a party to the proceedings; if that application is brought, and the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of a property settlement order, then the trustee must be joined. If the Trustee becomes a party, then without leave of the court the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property.

7I enquired of the husband as to the position in that regard and was told that his Trustee is fully aware of the present proceedings in this court and intends to participate in them. At this stage at least it does not appear that the Trustee has taken any formal steps in that regard to join the proceedings, and obviously that is something to which attention will need to be paid in the very short term. With the consent of the parties, a copy of these reasons and the orders that I pronounce today will be provided to the husband’s Trustee.

8Given the proximity of the trial, all of those matters cause concern at various levels.

The cross-examination ban and positions of the parties

9A concern fundamental to the question of whether the trial can fairly proceed arises because of the operation of the cross examination ban.

10The husband has applied for and been granted assistance under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) set up for that purpose, and has been allocated a solicitor.

11The wife wrote to the court on 20 February 2020, confirming that she had provided various documents to Legal Aid Western Australia (“Legal Aid”) and said “in addition, I will not be legally represented at the trial.”

12It was not clear to me from that letter as to whether the wife had been unable to secure legal assistance, or had chosen not to do so. If the latter, given that she is presently self-represented I was concerned to ensure that she understood the potential ramifications of that choice.

13At the hearing this morning, the wife told me that she had sought assistance from the Scheme but that her application had been refused, apparently on the basis of an assessment over the telephone that she has the financial capacity to fund her own representation. I will return to that issue shortly, acknowledging that the wife told me that her communications with Legal Aid in relation to the matter were by telephone only, and that there is a possibility of some miscommunication or misunderstanding.

14I therefore explained to her both the importance of cross-examination in the adversarial process, the distinct disadvantage at which she would be placed at trial if the husband’s evidence could not be challenged in cross-examination, and the mandatory nature of the cross examination ban, removing as it does any discretion the court would otherwise have to permit her to personally cross-examine if she wished to do so.

15The wife told me that she understood those matters, and that her preference would be to be represented for the purposes of trial; that said, she is understandably reluctant to commit her modest resources to legal representation for trial. She earns a salary of approximately $66,000 per annum, and according to her financial statement her expenses exceed her income. While I note that it appears that she is making voluntary contributions to her superannuation as part of those claimed expenses, even without those contributions she does not, on her admittedly untested evidence, have any surplus cash flow. She has savings of approximately $95,000, a very modest motor vehicle, and some chattels. She otherwise has superannuation with a value of approximately $155,000 which for obvious reasons is inaccessible to meet legal fees.

16The dilemma faced by the parties and by the court is this: in circumstances where the cross examination ban applies, and if the wife has been denied access to the Scheme but would contend that she cannot afford private legal representation, can the trial fairly proceed?

The operation of s 102NA, funding issues, and the right to a fair trial

17First, it is appropriate to consider the operation of s 102NA and the issues that can arise in terms of the court’s fundamental obligation to afford the parties a fair trial.

18Parties to proceedings in this court are entitled to conduct their case on their own behalf or to be represented by a lawyer.[1]

[1] Family Law Rules 2004 (Cth), r 8.01.

19That said, the law does not recognise a right to the provision of counsel at public expense even to a person accused of a serious criminal offence, let alone to a litigant in civil proceedings. Rather, the law recognises the right of all litigants to a fair trial. While in particular circumstances, lack of representation (or more commonly in a civil context lack of a fair opportunity to secure representation) may give rise to a question as to whether that right has been afforded,[2] the right to a fair trial is more fundamental than that. It pervades all aspects of the conduct of a trial, whether or not the parties or either of them are represented.[3]

[2] Dietrich v R (1992) 177 CLR 292.

[3] Re F (litigants in person guidelines) (2001) FLC 93-072.

20The provisions of s 102NA of the Act, and their possible operation to prevent cross examination of a party to the proceedings, squarely raise the question of whether a trial at which such cross examination is prevented can be fair.

21Of course, s 102NA does not preclude cross examination per se – it precludes personal cross examination, and imposes a requirement that cross examination only be conducted by a legal practitioner.

22The efficacy of the section, and the proposition that it does not preclude a fair trial, is therefore inextricably linked with the establishment and operation of the scheme established to provide publicly funded legal representation. That much is recognised in the explanatory memorandum to the amending legislation where it is stated:

“Importantly, where personal cross-examination is prohibited, both parties would be required to conduct cross-examination through a legal representative. Therefore, neither party would be disadvantaged and both parties would be provided with reasonable opportunity to present their case”,[4] and further that “[i]t is intended that a party would obtain their own legal representation where possible, and that legal aid would be available where a party is unable to obtain private representation”.[5]

[4] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 14.

[5] Ibid, 3.

23In addressing the financial impact of the relevant bill, the explanatory memorandum states that “[t]he Australian government is working with National Legal Aid to determine the impacts that are expected to result from the measures in the Bill and ensure that adequate funding is available”.[6]

[6] Ibid, 13.

24Further, it is stated that:

“[t]he amendments would not produce any procedural unfairness or practical injustice, as a party who wishes to conduct a cross-examination would be at liberty to obtain the assistance of a legal practitioner to act on his or her behalf. It is intended that the court would allow a party adequate time to obtain legal representation, and that legal aid would be available where a party is unable to obtain private representation”.[7]

[7] Ibid, 35.

25The explanatory memorandum does not appear to contemplate circumstances where a party to proceedings in which the mandatory ban on personal cross examination applies is unable (as distinct from unwilling) to obtain legal representation, either by self-funding or by access to the scheme. That such a circumstance is not contemplated reinforces the observation already made as to the inextricable link between the establishment and operation of the funding scheme, and the intended operation of the section. It implies further an assumption that the scheme will be adequately resourced.

26That point in turn is reinforced by the further expression of intention that “where a party refuses to engage a lawyer or accept representation from legal aid, they would be prohibited from conducting a cross examination”, as those circumstances would, it is said, reflect “a matter of choice for the party as to how he or she wishes to conduct his or her own case”.[8]

[8] Ibid, 37.

27The implied conclusion that in those circumstances no procedural or other unfairness would arise is sought to be supported by observations which appear earlier in the explanatory memorandum to the effect that a party unable to cross examine the other party will “still be entitled to present his or her case through, for example, his or her own evidence in chief or by personally questioning (including cross examining) other witnesses”, and that the court would “as part of its ordinary judicial function, be required to form its own view based on the totality of the evidence before it”, with no requirement “to accept as true the evidence provided by the party who was unable to be cross examined”.[9]

[9] Ibid, 15.

28Leaving aside momentarily the issue of refusal to engage representation, those observations are, in my view, reflective of a superficial consideration only of the “central significance” of cross-examination to the common law adversarial system of trial.[10] The apparent reference to what is generally described as the rule in Browne v Dunn,[11] even accepting the limited application of that rule in circumstances where a party is on notice that his or her version of events is in contest, as is often the case where responsive affidavits have been filed,[12] glosses over more fundamental matters.

[10] Lee v The Queen (1998) 195 CLR 594, [32].

[11] (1893) 6 R 67.

[12] LC & TC (1998) FLC 92-803

29As has been observed:

“The first object of cross examination is to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross examination is conducted. The second is to cast doubt upon the accuracy of the evidence in chief given against that party”.[13]

[13] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017), 17,430.

30It is no answer to observe that there is “some scope for the court itself to ask questions of a witness who was unable to be cross examined”.[14] While it is proper for a judge to clarify the evidence, and at times to go further by putting questions arising out of the evidence,[15] a judge cannot effectively take on the role of advocate for a party, even in a discrete segment of the trial. The fact that the discrete segment in question in the present circumstances would be cross examination of the other party simply reinforces the point.

The present case

[14] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 15.

[15] Buchwald v R (2011) 38 VR 199, [123]-[130], in the context of a criminal matter.

31In short, I conclude that a trial in this matter cannot proceed in a manner fair to the wife if she is precluded from cross-examining the husband because the operation of s 102NA prevents her from doing so personally, and she is unable (as distinct from unwilling) to secure representation, whether through the Scheme or otherwise. That conclusion is readily reached.

32Indeed, there is even potential for unfairness to the husband if he is, in those circumstances, not cross examined on his evidence in chief. That is so, as the weight to be given to admissible evidence upon which the witness cannot be cross examined, through no fault of the party who would wish to cross examine, can itself potentially be diminished.

33The more difficult question is whether a trial can fairly proceed if the wife has been denied access to the Scheme, but considers herself unable to afford to pay for private representation.

34As presently advised, I simply do not know whether the asserted denial of access to the Scheme arises merely because of the application of a means test, with a consequential determination that the wife can afford to pay for her own representation, or wholly or in part because of budgetary constraints imposed as a result of inadequate resourcing of the Scheme. I am alive to the possibility that any means test applied may be influenced by the second of those factors.

35If the former, the court will be placed in the position of having to, in effect, informally review the determination made by the relevant officer at Legal Aid. If the court concludes that the wife can afford to fund her own representation, and that it is reasonable that she be required to do so, then a failure on her part to do so would fall to be considered as an active choice by her.

36It is not, in my view, simply a matter of determining whether the wife can afford to fund her own representation. The question of whether it is reasonable that she be required to do so is not to be glossed over. That is particularly so in the present case, where the person from whom she is protected by the relevant order has been given access to the Scheme, and she (as the person protected) has, she says, been denied that access. The imposition on a victim of family violence of a financial cost by virtue of legislative measures designed to protect her is self-evidently problematic.

37If the refusal of funding relates to budgetary constraints in whole or in part, noting that for example such constraints might inform the application of a means test, potentially different issues arise.

38While I have sympathy for the dilemmas apparently faced by officers of both Legal Aid and the Department administering the scheme, and am not critical of them, it is clear that any funding difficulties which may be faced as a result of inadequate budgetary allocations are not matters which should affect or influence the decisions required to be made by the court in applying the legislation, and in determining whether a trial can proceed in a manner that is procedurally fair.

39As the West Australian Court of Appeal has previously observed in a different context, when, consistent with the objects of relevant legislation, a court contemplates orders which will require the provision of publicly funded services, it is entitled to, and must, assume that “the executive will perform its function” by the provision of those services, since Parliament has made provision for them.[16]

[16] Director of Public Prosecutions (DPP) (WA) v Williams [2007] WASCA 206, [81].

40At present, the evidence before me does not permit a proper consideration of those issues, nor have the parties had the opportunity to turn their minds to them in any detail. In the circumstances, I propose to authorise the publication of a copy of these reasons to Legal Aid, and afford an opportunity for that body to either be heard at the next hearing of the matter, or inform the court in another manner, should it choose to do so.

41I also leave open the question of whether, should the wife choose not to be represented or avail herself of the relevant Scheme, the trial might nevertheless proceed in a manner fair to her. Certainly, I acknowledge that the Explanatory Memorandum would indicate the intention that it could.

42It is unnecessary to determine that question at present, as I am concerned that at the time the wife wrote to the court on 20 February 2020 she may not have fully appreciated the implications of her expressed intention to self-represent.

43As noted earlier, those implications have been clearly explained to her by me this morning.

The readiness of the matter in any event

44The financial case between the parties is not, in any event, ready for trial. Neither party has sufficiently clarified the relief that they seek. Neither party has yet updated the evidence contained in affidavits prepared in late 2018. The husband is bankrupt, but his Trustee has not yet taken any part in the proceedings, while expressing an intention (apparently) to do so.

45I note in that regard that the home previously owned by the husband in his capacity as Trustee for a family trust was apparently sold after being repossessed by the bank. The wife says she has no accurate information as to what became of the proceeds, although she expects they went entirely to creditors. I have already outlined the modest financial circumstances of the wife as set out in her recent financial statement. The husband’s financial statement sworn on 7 January 2020 says that he has a car worth $20,000 and chattels worth $3,000, plus superannuation of about $1,000 and otherwise has no property. He claims to have a liability of $22,000 to an unidentified “private lender”.

46Neither party has filed an undertaking as to disclosure.

47From that brief outline, and if the wife’s evidence as to significant inheritances received by her prior to and during the course of the relationship is in due course accepted as accurate, it is tolerably clear that the parameters of the financial dispute are narrow.

48The parenting case between the parties is also not ready for trial. Again, neither party has adequately clarified the relief which they seek nor have they updated the evidence contained in affidavits prepared in late 2018. The ICL has only just been appointed and understandably has not been able to advance necessary enquiries very far. The single expert report was prepared in August 2018 and has not been updated.

49I have significant doubts as to whether the matter can be properly made ready for trial to proceed as scheduled on 20 April 2020. That said, I appreciate that the proceedings have been before the court for some considerable time and that the parties would be anxious to take advantage of the allocated trial date if they possibly can. I am aware also that funding under the Scheme is generally only made available when a trial date is imminent, as it presently is; vacating the trial at this stage might create as many problems as it addresses.

50I am therefore prepared to make orders directed towards trying to have the matter properly ready for trial. While I will not vacate the trial date at this stage, I make it clear to the parties that the option to do so remains open to me, and will likely be taken if by the time of the status hearing presently scheduled for 7 April 2020 the matter is clearly not going to be ready.

Orders

51There will be the following orders:

1.Within 7 days the wife must provide to the ICL copies of all court documents filed by her to date, to the extent she has not already done so.

2.Subject to the provision of funding by Legal Aid Western Australia, the parties do all things necessary to cooperate in the preparation of an updated report by Dr [W] at the direction of the ICL.

3.By no later than the close of registry on Wednesday, 1 April 2020, to the extent she has not already done so, the applicant wife must file and serve:

(a)a minute setting out the final orders she now seeks in both the parenting and financial proceedings, such minute to stand as if a formal amendment of her application;

(b)an affidavit updating her evidence in chief, such affidavit to be limited to evidence as to relevant events which have occurred since 26 October 2018, and her present circumstances.

4.By no later than the close of business on 19 March 2020, to the extent he has not already done so, the husband must inform his trustee in bankruptcy in writing of the following:

(a)the fact that proceedings are on foot between the parties for alteration of property interests;

(b)that the proceedings are scheduled for a status hearing before me at 10.00 am on 7 April 2020; and

(c)that the proceedings are scheduled for trial before me to commence not before 20 April 2020 at 10.00 am.

5.The husband must promptly provide to the court, the ICL and the wife a copy of the written advice provided to his trustee pursuant to the immediately preceding paragraph.

6.By no later than the close of registry on Wednesday, 1 April 2020 the respondent husband must, to the extent he has not already done so, file and serve:

(a)a minute setting out the final orders he now seeks in both the parenting and financial proceedings, such minute to stand as if a formal amendment of his response;

(b)an affidavit updating his evidence in chief, such affidavit to be limited to evidence as to relevant events which have occurred since 21 November 2018, and his present circumstances; and

(c)any updating affidavit he wishes to file, updating the evidence in chief of witnesses who have already sworn affidavits on his behalf, such affidavit to be limited to evidence as to relevant events which have occurred since 21 November 2018.

7.By no later than the close of registry on 1 April 2020 both parties must comply with their duty of disclosure of relevant documents, and must file and serve an undertaking as to disclosure.

8.There will be an updating order in the usual terms for the provision of information by the WA Police in relation to both parties.

9.The Form 2 application of the husband filed on 6 March 2020 is otherwise dismissed.

10.The substantive proceedings are adjourned to the status hearing at 10.00 am on 7 April 2020.

These reasons are the reasons for decision delivered on 17 March 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

19 MARCH 2020