HENRY and DEL FRATE

[2019] FCWA 207

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HENRY and DEL FRATE [2019] FCWA 207

CORAM: O'BRIEN J

HEARD: 18 SEPTEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 6372 of 2011

BETWEEN: MR HENRY

Applicant

AND

MS DEL FRATE

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application of s 102NA of the Family Law Act 1975 - Interpretation of s 102NA(1)(c)(i) - Where spent conviction order was made - Where requirements of s 102NA(2) apply.

Legislation:

Acts Interpretation Act 1901 (Cth)
Criminal Code Act Compilation Act 1913 (WA)
Family Law Act 1975 (Cth)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms De Maio
Respondent	:	Mr Grasso
Independent Children's Lawyer	:	Mr Scott

Solicitors:

Applicant	:	Eureka Lawyers
Respondent	:	Millsteed Grasso
Independent Children's Lawyer	:	HBR Family Lawyers

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

Nil

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

1The parenting proceedings between [Mr Henry] (“the husband”) and [Ms Del Frate] (“the wife”) are listed for trial to commence before me [in] October 2019. They came before the Court today for a status hearing.

2The husband is represented. The wife is not represented for the purposes of trial although she was represented today by counsel appearing pro bono. The matter requiring urgent determination is the application or otherwise of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to these proceedings.

3Section 102NA is 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.

4Subsection 2 precludes personal cross-examination of either party by the other party, mandating that such cross-examination may only be conducted by a legal practitioner (“personal cross-examination ban”).

5The requirements of s 102NA(1)(a) & (b) must be satisfied for a personal cross-examination ban to be imposed. If, in addition to those requirements, the court is satisfied that any of the criteria set out in subsection (c)(i), (ii) or (iii) are met then the imposition of a personal cross-examination ban is mandatory (“mandatory ban”). If none of the criteria set out in subsection (c)(i), (ii) or (iii) are met, the court may still pursuant to subsection (iv) make an order that the requirements of subsection (2) apply (“discretionary ban”).

6Where a mandatory ban is triggered, or a discretionary ban is ordered, both parties are entitled to seek legal assistance pursuant to the Family Violence and Cross-Examination Scheme administered by Legal Aid Western Australia.

7In the present case, both parties have confirmed that they intend to cross-examine the other at trial. There are multiple allegations of family violence between them. The requirements of s 102NA(1)(a) & (b) are met.

8There is no current family violence order applying to both parties. There is no relevant personal protection order or injunction.

9The question therefore remains as to whether a mandatory ban is triggered in this case by the operation of s 102NA(1)(i).

Relevant facts

10Documents produced under subpoena by the Western Australia Police, and which I admit into evidence in the proceedings, record various incidents between the parties.

11In particular, the documents produced include a report arising from an incident between the parties [in early] 2014. The police records set out the husband’s account of the incident. In short, after an argument between the parties the husband stood in front of the wife’s car, trying to video record her actions on his mobile telephone. The police account records that “at this juncture the [wife] drove straight at the [husband] striking him with her car. This action caused the [husband] to be driven a distance of about 20 metres on the car bonnet hanging on by the windscreen wipers. The [wife] broke (sic) heavily coming to a quick stop allowing the [husband] to get off.”

12As a result of the incident the wife was charged with two counts of breaching a Violence Restraining Order, one count of criminal damage or destruction of property, and one count of endangering the life, health or safety of a person.

13[In late] 2014, she was convicted of the two charges of breach of a Violence Restraining Order. The charge of criminal damage or destruction of property was dismissed with no evidence being offered.

14The wife was not convicted of the charge of endangering the life, health or safety of a person; rather, she was convicted of the lesser offence of dangerous driving.

15In relation to that charge the wife was fined $200 and a spent conviction order was made pursuant to s 45 of the Sentencing Act 1995 (WA). Six-month conditional release orders were made in relation to both convictions for the breach of violence restraining orders, and spent conviction orders pursuant to s 45 were again made.

16The question thus arises as to whether the requirements of s 102NA(1)(c)(i) are satisfied such as to trigger a mandatory ban.

17In short, I conclude that the requirements of the subsection are satisfied.

18In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. [1]

[1] Acts Interpretation Act 1901 (Cth), s 15AA.

19That purposive approach to statutory interpretation, bearing in mind the purpose and objects of the amending legislation which introduced s 102NA into the Act supports the conclusion that s 102NA(1)(c)(i) should not be interpreted restrictively so as to refer only to conviction of an offence of which violence or a threat of violence is an essential legal element. Rather, in my view the section should be interpreted more broadly, to include conviction of an offence where the actions on the part of the convicted person, which led to the relevant conviction, included violence or threats of violence towards the other party.

20By way of example, a conviction for breach of a Family Violence Restraining Order where that breach itself did not involve any act of violence or threat of violence would not in my view trigger a mandatory ban. A conviction for breach of a Family Violence Restraining Order, where the action constituting the breach did involve either an act of violence or a threat of violence towards the other party would in my view trigger a mandatory ban.

21In the present case, the wife was charged with the offence defined in s 304(1)(b) of the Criminal Code Act Compilation Act 1913 (WA), which provides that if a person unlawfully does any act as a result of which the life, health or safety of any person is or is likely to be endangered that person commits a crime. She was instead convicted of the lesser offence created by s 61(1) of the Road Traffic Act 1974 (WA), which provides that every person who drives a motor vehicle in a manner that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.

22I was advised from the bar table this morning that the conviction on the lesser charge followed a plea agreement. I do not have evidence as to the full detail of that agreement, or the strength or otherwise of the case against the wife in relation to the charge initially brought.

23That does not alter the fact that the wife’s act in driving the vehicle at the husband (as alleged by him) or by continuing to drive after he placed himself on the bonnet (as she admits) was inherently violent.

24The wife was convicted of an offence. The commission of that offence involved the commission by her of an act of violence towards the husband. The imposition of the permitted sentencing option of a spent conviction order does not alter the fact of that conviction, as is clear from the terms of s 45(2) of the Sentencing Act 1995 (WA).

25It follows that in my view a mandatory ban is triggered.

26I record that even if I am wrong in that conclusion, I would in any event impose a discretionary ban in this matter. It is unnecessary for present purposes to detail the extensive other evidence in the materials before the court which would support the imposition of a discretionary ban.

27Having found that a ban applies, the question then remains as to how the proceedings should progress from this point.

28The wife must be given the opportunity to access the scheme administered by Legal Aid Western Australia to provide legal assistance for litigants in proceedings where a cross-examination ban is in place. There is no sensible prospect of that process being completed in time for the trial to proceed as presently scheduled, let alone for any lawyer appointed by Legal Aid to adequately prepare for trial in the two weeks available.

29It would be procedurally unfair to require the wife to proceed to trial in circumstances where she would be at risk of being unable to cross-examine the husband. It follows that the trial presently listed must be vacated.

30I note in that regard that any perceived prejudice to either party arising from the trial being vacated may, notwithstanding the long and difficult history of the proceedings and the desirability of them being brought properly to an end, be illusory in any event.

31Neither party has complied with orders made requiring that they file Papers for the Judge prior to today’s status hearing. Neither has filed any affidavit material other than the affidavits submitted for filing by the wife in the last few days since the publication to them of the most recent report of the single expert witness in December last year. Neither has filed any Minute of orders sought responsive to that report.

32The most recent affidavit evidence filed on behalf of the husband was filed in early November 2018. The most recent affidavit material filed on behalf of the wife before the affidavit she has submitted in the last couple of days was filed still earlier. Even were it not for the issues raised regarding the cross-examination ban, I would be concerned as to the readiness of the matter for trial in any event.

33I propose, therefore, to vacate the trial and to list the matter back before myself for directions only in my [upcoming] Duty Judge List. That will afford both parties and the Independent Children’s Lawyer the opportunity to carefully consider what steps are required to ensure that the matter is properly ready for trial. It will also afford the wife the opportunity to access the relevant legal aid scheme and obtain independent legal advice as to what is required to properly present her case for trial.

34I record that the wife is present in court today and that I have made it clear to her that if she does not take the appropriate steps to access the scheme administered by Legal Aid and presents to the eventual trial self-represented the cross-examination ban will apply and she will not be permitted to personally cross-examine the husband.

35I confirm also that having discussed the matter with the Chief Judge I am able to include the matter in [an upcoming] Callover with priority for the allocation of a trial date in [early] 2020. In that way when the parties appear before me [in my upcoming Duty Judge List] they will know what their trial date is and appropriate directions can be made to ensure that the matter is properly ready for trial without further delay.

36In all those circumstances I do not propose at this stage to grant leave to the wife to issue the subpoenas forwarded to the Court by her last Thursday; once she has the benefit of legal advice, she can renew her request for leave to issue those subpoenas if appropriate.

37I will accept the affidavit that she has submitted for filing and she can then serve that on the other parties in due course and obtain the necessary legal advice in relation to its contents if she chooses to do so.

Orders

38There will be the following orders:

1.The trial presently listed to commence [in] October 2019 is vacated.

2.The proceedings are included in [an upcoming] Callover at 9.00 am with priority for the allocation of a trial date in [early] 2020.

3.The usual order for the parties to file callover certificates seven (7) days prior to the Callover.

4.The proceedings are adjourned to my Duty Judge List [for] directions only

5.There will be the usual notations as to the imposition of the mandatory cross-examination ban, and a copy of these reasons and orders and the most recent report prepared by the single expert witness [Mr C] will be provided to Legal Aid Western Australia.

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

KM
Associate

19 SEPTEMBER 2019