Fujiwara & Suzukaze
[2022] FedCFamC1F 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fujiwara & Suzukaze [2022] FedCFamC1F 104
File number(s): BRC 6591 of 2021 Judgment of: CAREW J Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – CHILDREN – PROCEDURE AND EVIDENCE – Where the Independent Children’s Lawyer sought a s 102NA discretionary banning Order on personal cross-examination between the parties – Where the Court considers making an Order to ban personal cross-examination of parties – Where there are allegations of family violence – Where there is a likely power imbalance between the parties – Where an order banning personal cross-examination is made Legislation: Family Law Act 1975 (Cth) Cases cited: Hurley and Melton (No 2) (2020) 61 FamLR 405
Lazar & Haines [2022] FedCFamC1F 35
Number of paragraphs: 26 Date of last submission/s: 25 February 2022 Date of hearing: 25 February 2022 Place: Brisbane Solicitor for the Applicant: Self-represented Solicitor for the Respondent: Self-represented Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 6591 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FUJIWARA
ApplicantAND: MR SUZUKAZE
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
25 FEBRUARY 2022
IT IS ORDERED THAT:
1.Pursuant to the discretionary provisions of s 102NA(1)(b) and (c)(iv) and s 102NA(2) of the Family Law Act 1975 (Cth) both of the following requirements apply to the cross-examination in this case:
(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.
2.Following these Orders each party must promptly apply to the Legal Aid Queensland Cross-Examination Scheme by email to the [email protected] and each must promptly submit their completed application to that address.
3.Each party do all things necessary to ensure that their application under the Commonwealth Scheme can be processed without delay and that they cooperate in all respects with any reasonable requests made of them for that purpose.
4.It is requested that Legal Aid Queensland assess each party’s application with priority to ensure that the trial listed for 4 days commencing 30 March 2022 can proceed.
5.The registrar of the Federal Circuit and Family Court of Australia (Division 1) forthwith provide a copy of this Order and the ‘Banning Notice’ to the Legal Aid Queensland Cross-Examination Scheme.
6.The mother’s Application in a Proceeding filed 24 February 2022 be adjourned for hearing to 7 March 2022 at 9.30 am at which time all parties have leave to appear via Microsoft Teams Video.
7.The mother file and serve a Statement of Financial Circumstances on or before 4.00 pm on 1 March 2022 and provide copies of financial documents to support her claim that her financial circumstances are dire.
8.The father file and serve a Response to the mother’s Application in a Proceeding, an affidavit in support and a Statement of Financial Circumstances on or before 4.00 pm on 3 March 2022 and provide copies of financial documents to support his stated financial position.
9.The independent children’s lawyer be at liberty to provide to each party a copy of any proposed tender bundle for the trial on condition that the copy is returned to the independent’s children’s lawyer at the conclusion of the proceedings and on the further condition that the documents are used only for the purposes of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fujiwara & Suzukaze has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J.
A final trial between Ms Fujiwara (“the mother”) and Mr Suzukaze (“the father”) is due to commence on 30 March 2022 for four days. The independent children’s lawyer (“ICL”) filed an Application in a Proceeding on 15 February 2022 seeking an order prohibiting cross-examination by the parties of each other pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”).
The substantive proceedings concern a dispute about the parents’ young son, X, who is not yet two years of age. Since his birth in 2020, the child has endured considerable instability. The parents had a brief relationship from about February 2019 to about October 2020. The father withheld the child from the mother in May 2021 before a recovery order was made three weeks later. The mother unilaterally relocated to Sydney in June 2021 and the father spent no time with the child until 19 February 2022 when an interim agreement was reached that he spend time with the child each Friday and Saturday from 7.30am to 5.30pm. An order to that effect was made by consent on 21 February 2022. The father was also restrained by that order from consuming alcohol during the visits or within 24 hours beforehand.
When the matter came before me for trial directions on 16 December 2021 I gave the matter a priority trial date because it involved the mother’s application to relocate with the child to Country B and because the father was not spending any time with the child at that time. Neither the parties (who are self-represented) nor the ICL (who was represented by an agent), drew to my attention any reason why the parties should be prohibited from cross-examining each other pursuant to the discretionary provisions of s 102NA of the Act. There have been no domestic violence protection orders made and no criminal charges or convictions. There have been no personal protection injunctions against either party.
Section 102NA of the Act provides 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.
(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.
There is no suggestion that the mandatory provisions of s 102NA apply. The application to ban cross-examination by a party personally is made pursuant to s 102NA(1)(a)(iv). Whether or not an order is made is a matter within the discretion of the Court. If an order is made, the parties must obtain legal representation, either privately or by applying under the Commonwealth Family Violence and Cross-Examination of Parties Scheme for the appointment of a lawyer (if cross-examination is to occur). The Scheme in Queensland is managed by Legal Aid Queensland (“LAQ”). The Scheme is not means or merits tested but a party provided legal representation under the Scheme may be asked to contribute to their legal costs depending upon the circumstances.
As the hearing due to commence on 30 March 2022 is a final hearing it is reasonable to anticipate that each party will wish to exercise their right to cross-examine the other party. If personal cross-examination is banned, the Scheme established by the Commonwealth is intended to ensure that a party’s right to a fair trial is ensured.
The ICL relies upon an email from LAQ dated 16 February 2022 in which it is said:
If completed applications are promptly returned to the Scheme, allocation should be possible before Trial commencing on 30 March 2022.
(emphasis added)
The ICL confirmed that in her most recent telephone communication with LAQ this morning they expressed some confidence that the matter would be able to proceed on the listed dates commencing on 30 March 2022.
If the trial had to be adjourned, it is unlikely that the matter would be heard until about October 2022 at the earliest. In those circumstances the father contends that he would be unable to continue to see his son each week pursuant to the recent Order. The arrangement in place involves him travelling from City C to Sydney and spending each Friday and Saturday with the child.
The Act is silent about what matters should guide the exercise of discretion to make an Order banning cross-examination. In this context, Hogan J in Hurley and Melton (No 2)[1] considered the purpose of s 102NA and 102NB of the Act by reference to the Explanatory Memorandum to the legislation which refers to the intention to avoid re-traumatisation of victims and the power imbalance in such circumstances and said as follows:
That is, the purpose of the sections might be regarded as protecting the integrity of the litigation process by protecting against the potential that being cross-examined by a perpetrator of family violence can affect a victim’s ability to give clear evidence, and also protecting against the possibility that, by virtue of the impacts of family violence, a victim may not be able adequately to cross-examine the perpetrator.
[1] (2020) 61 FamLR 405.
SHOULD THE PARTIES BE BANNED FROM CROSS-EXAMINATION?
In support of her application for an order to ban cross-examination, the independent children’s lawyer relies on the following factors:
(c)There are allegations of family violence between the parties which are before the Court for trial;
(d)Information contained in the Child Inclusive Conference (“CIC”) Memo dated 16 June 2021 - Risk Factors being the parties' allegations of domestic violence against the other (paragraphs 4-7), Adult Relationships (paragraphs 20-24) noting "significant power imbalance";
(e)Subpoenaed material produced by D Service and E Hospital (“E Hospital”);
(f)The parties' allegations as contained in the following:
(i)The mother's affidavit filed 20/05/2020 at [21] –[27];
(ii)Notice of Abuse and Risk items 23, 34, 35;
(iii)The father's affidavit filed 04/06/2021 at [25];
(iv)The father’s affidavit filed 16/12/2021 at [14] – [16], [20], [22]; and
(v)The father’s affidavit filed 02/02/2022 at [13];
(g)Issue 4 identified by the parties and the ICL on 16 December 2021:
Has the child suffered serious psychological harm from experiencing family violence directly or indirectly and is there an unacceptable risk to the child of being exposed to family violence in the future.
At the time of her application, there was no evidence before the Court in support of the matters raised in sub-paragraphs (b) and (c) above but without objection (and for the purposes of this application only) the CIC report was received into evidence (Exhibit 1), as was the ICL’s summary of the documents produced pursuant to subpoena from E Hospital and D Service (Exhibit 2).
The mother’s allegations of family violence are that the father “would often become verbally and psychologically abusive” towards her and she provides examples of the abuse and its consequences including the following:
(a)The father often said things such as “you are so incompetent”, “you are wasting my money”, “useless piece of shit”, “you do absolutely nothing” and “if you want me to forgive you, you go on your knees and apologise”, “you stupid woman”, “you better be thankful that I took care of you during your pregnancy” and “why don’t you leave the baby here and go back to Country B”;
(b)The father did not financially assist the mother to buy any personal necessities despite her modest income;
(c)In April 2020 the mother was assisted by a social worker to leave hospital and relocate to temporary accommodation where she remained until May 2020 before returning to the father;
(d)The father “would open 2 – 3 bottles of wine and drink half a carton of beer every day”; and
(e)The father injured himself by burning his left arm when trying to cook while intoxicated.
Other than the ICLs brief summary of the evidence contained in the D Service documents, there is no evidence to corroborate the mother’s assertion relating to living in temporary accommodation for a short time in late April 2020 or the circumstances in which that occurred. In the mother’s Notice of Risk she indicates that she has experienced emotional/psychological, financial and threatening comments from the father.
The father denies the mother’s allegations and contends that it was the mother who “belittles and denigrates [him] and has maintained [a] hostile attitude towards [him]”. Further, he contends that the mother was “demanding and manipulative”, “acted aggressively” and has used the child as a “bargaining tool”.
At this stage of the proceedings there are allegations, denials and counter allegations. However, it cannot be the case that the discretion to ban cross-examination can only be made when satisfied of the truth of allegations. That can only occur at trial. There must nevertheless be some assessment undertaken about the nature of the allegations. In this context, I respectfully agree with the observations made by Jarrett J in Lazar & Haines[2] where His Honour said:
The nature and extent of the allegations of family violence will be plainly relevant. Allegations which are weak or insubstantial will not weigh heavily in favour of an exercise of the discretion. Allegations which are no more than generalised assertions, bereft of any particularity, will not weigh heavily in the exercise of the relevant discretion.
[2] [2022] FedCFamC1F 35.
Whether an allegation amounts to family violence within the meaning of the Act depends not only upon the nature of the allegation but also the impact on the alleged victim. That much is clear from the definition of ‘family violence’ in the Act which is set out in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violencemeans violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposedto family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
With some behaviour, the impact on the alleged victim is obvious, even absent a statement by the victim to that effect. However, where the allegations involve words rather than deeds, any impact on the victim may not necessarily be obvious and would therefore require evidence from the victim upon which a finding of family violence could be made. The only evidence given by the mother as to the impact of the father’s behaviour on her, is either unrelated to an actual allegation of verbal or psychological abuse or limited to a statement that she was “very fearful of him” in circumstances where she was not in the country at the time. The mother subsequently returned to Australia because the father “continually guilt-tripped [her]” saying - “you have kidnapped my child” and “you better come back, or you will have to pay me back all the money I have spent on you!”
I am however assisted by the E Hospital’s description of the mother’s state in April 2020 and her reported comments to hospital staff about her fear, and the assessment of the family consultant about the power imbalance between the parties. On a prima facie basis the allegations of family violence warrant a discretionary banning order against cross-examination.
The father’s allegations against the mother are very general and lack any particularity.
In the exercise of my discretion I also consider it relevant to have regard to the likely consequences of the order being sought. LAQ have expressed the likely readiness of the matter for trial even with an order being made at this late stage. There is of course a possibility of adjournment and the consequences for the father, in particular, if a several month delay occurred. Section 69ZN imposes a number of obligations on trial judges when dealing with child related proceedings. Among other things, I am required to “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”. Further, “the proceedings are to be conducted without undue delay”.
On balance I do propose to make an order banning personal cross-examination for the following reasons:
(a)the allegations of family violence although lacking significant particularity as to the frequency and impact of the alleged conduct nevertheless raise the real prospect of a party being overborne by a process which requires personal cross-examination of a potential perpetrator;
(b)the assessment of the family consultant is that there is likely to be a real power imbalance between the parties in this case;
(c)the matter is likely to be able to proceed as listed on 30 March 2022 if a banning order is made and processed with priority so I will include an order that each party do all things necessary to ensure that their application under the Commonwealth Scheme can be processed without delay and that they cooperate in all respects with any reasonable requests made of them for that purpose.
THE MOTHER’S APPLICATION TO APPEAR AT THE TRIAL BY ELECTRONIC MEANS
The mother filed an Application in a Proceeding on 24 February 2022 (the evening before this hearing) seeking to appear at the upcoming trial by Microsoft Teams or in the alternative that the father pay her costs of attending the trial including but not limited to travelling, accommodation, babysitting fee and she further seeks that the Court provide childcare during the hearing.
The father opposes the application for the mother to appear by electronic means at the trial and contends that he would be unable to pay for the costs associated with her travel.
The mother provides no evidence to support her contention that her financial circumstances are dire. One would expect the mother would be able to produce bank statements, payment slips from her employer, a copy of her tenancy agreement and other financial records. The mother also provides no evidence about the cost of travel, accommodation and babysitting in Brisbane.
As both parties will need to put evidence before this Court addressing matters relevant to the mother’s application I propose to adjourn her application to 7 March 2022 at 9.30 am.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 3 March 2022
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