HILLS & CALDWELL

[2020] FamCA 574

FAMILY COURT OF AUSTRALIA

HILLS & CALDWELL [2020] FamCA 574

FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where none of the provisions in s102NA(1)(c)(i), (ii) or (iii) applies – Where the issues to be determined at final hearing are limited – Where the Court declines to exercise its discretion – Application dismissed.

Family Law Act 1975 (Cth) s 102NA.

APPLICANT: Mr Hills

RESPONDENT: Ms Caldwell

INDEPENDENT CHILDREN’S LAWYER: Doolan Wagner Family Lawyers

FILE NUMBER: SYC 7626 of 2015

DATE DELIVERED: 17 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 17 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Doolan Wagner Family Lawyers

Orders

IT IS ORDERED

1. That the oral application of the respondent for an order pursuant to section 102NA of the Family Law Act 1975 (Cth) is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Caldwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7626 of 2015

Mr Hills

Applicant

And

Ms Caldwell

Respondent

REASONS FOR JUDGMENT

1. Mr Hills (“the father”) and Ms Caldwell (“the mother”) are engaged in parenting proceedings relating to two of their three children, Y aged 14 and Z aged 12 years. They have agreed that no orders will be made in relation their oldest child.

2. In the substantive proceedings the father represents himself. The mother has made allegations of family violence such as, it is submitted, to engage the provisions relating to the cross-examination of victims by perpetrators of violence.

3. The issue to be determined here is whether an order should be made pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) as both the mother and the Independent Children’s Lawyer (“ICL”) submit.

4. The father, the mother and the ICL have all filed written submissions in relation to this issue and it is agreed that the matter will be determined on the papers.

5. The issue was raised by the mother’s lawyer when the matter was listed before me for trial directions on 1 July 2020. On that day, orders were made that the parties file and serve their trial affidavits by 31 July 2020 and that the matter be listed in a call-over on 14 August 2020 for the allocation of hearing dates.

6. It is not in dispute that, in the event that an order is made for the father to be represented pursuant to the provisions of s 102NA, then it cannot be ready for the allocation of hearing dates in August and the substantive hearing will be necessarily delayed, perhaps for many months.

7. This is a relevant consideration in proceedings which were commenced in 2015 and have yet to be heard.

8. The provisions of s102NA are reproduced below:

   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.

9. The father denies any allegation that he has perpetrated family violence against the mother.

10. None of the provisions in s102NA(1)(c)(i), (ii) or (iii) applies.

11. The parties separated in October 2015.

12. An Interim Apprehended Family Violence Order was made in December 2015 for the protection of the mother against the father, however, the police did not proceed with the application, the interim order expired and no final order was ever made.

13. The mother’s allegations against the father are set out in affidavit sworn by her in 2015 and 2016. She alleges that on 26 October 2015 the father sexually assaulted her but gives little detail of what occurred. There are no other allegations of physical assault. She alleges that he engaged in verbal denigration and demeaning comment, and controlling behaviour and specifically that he questioned her mental health.

14. Dr F, a psychiatrist, also provided a report dated 18 December 2015. He saw the mother on three occasions commencing on 28 October 2015, the last being on 16 December 2015. Dr F diagnosed the mother as suffering an adjustment disorder with depressed mood and a Cluster C Type personality disorder characterised by having difficulty asserting herself, assuming responsibility, expressing disagreement and needing support and encouragement.

15. The mother sought treatment from a psychologist, Dr G in February 2014, and she provided a report dated 23 December 2015. Dr G stated that once the mother ended the marriage and left the home she no longer felt depressed and concluded:

    While I expect [the mother] to experience significant grief once current stressors have abated, I am confident she is able to recover from her current psychological condition.

16. The issues to be determined in the substantive proceedings are extremely narrow.

17. A Family Consultant, Ms H, has prepared a report dated 14 May 2020. She has made recommendations in relation to the day to day parenting arrangements for the children that the parents have both adopted. Ms H stated in her report, “Both parents advised that the current time spending arrangement is well established and working well for the children”.

18. The only issue upon which they cannot agree is that of parental responsibility. The father proposes that he have sole parental responsibility and the mother proposes equal shared parental responsibility. Ms H identifies poor communication and lack of trust between the parents as a bar to effective decision making.

19. On behalf of the mother, it is submitted that the “Wife will be questioned about her allegations of family violence, control and the sexual assault…” and that as a result she will be “re-traumatised”.

20. I do not accept that submission.

21. The father in his submission stated:

    I will certainly not be interested in probing that time if the issue at stake is the children’s living arrangements. I will be confining my attention to what is in the best interests of the children now, based on the past five years’ experiences, post-separation.

22. These parties have been separated for nearly five years and have been co-parenting their children since that time. The scope of cross-examination will be limited to matters which are relevant to the very limited issue of whether one of them should have sole parental responsibility.

23. In circumstances where there is no, or very limited, dispute about the children’s day to day living arrangements, it is difficult to foresee how it can be asserted that anything that occurred almost five years ago, before the parties separated, is relevant to the present issues.

24. The Court has, and will exercise, power to control cross-examination so that matters which are not relevant to the issues requiring determination will not be traversed.

25. In the limited circumstances of the dispute in these proceedings, I decline to exercise my discretion to make an order pursuant to s102NA.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 17 July 2020.

Associate: 

Date:  17/07/2020