Hurley & Melton (No 2)

[2020] FamCA 917

FAMILY COURT OF AUSTRALIA

HURLEY & MELTON (NO. 2) [2020] FamCA 917

FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of section 102NA(2) of the Act ordered to apply.

Family Law Act 1975 (Cth)

Abadi & Sokulsky [2020] FamCA 64
Banks & Smythe [2019] FamCA 604
Chard & Yong (No. 2) [2019] FamCA 948
Donne & Scully [2019] FamCA 785
Ferreira & Ferreira (2019) 60 Fam LR 19
Hills & Caldwell [2020] FamCA 574
Muratov & Muratov [2019] FamCA 1014
Owen & Owen (2020) 60 Fam LR 334
Scritton & Javins [2020] FamCA 316
Thompsett & Keen & Ors [2019] FamCA 673

APPLICANT: Ms Hurley

RESPONDENT: Mr Melton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 503 of 2013

DATE DELIVERED: 22 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 October 2020

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Buchanan from Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.

IT IS NOTED THAT

A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination in the proceedings, the Court has today advised the parties:

(i)that pursuant to those requirements, neither party may cross-examine the other party personally;  and

(ii)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;  and

(iii)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer;  and

(iv)that they are able to apply to that Scheme for the provision of a lawyer by completing an application form available by accessing ...;  and

(v)that a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.

AND IT IS FURTHER NOTED THAT

B.The Court respectfully requests that Legal Aid Queensland accord any Application submitted by each parent for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the matter is listed for final hearing for three (3) days commencing on 2 December 2020.

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 Hurley & Melton 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 BRISBANE

FILE NUMBER: BRC 503 of 2013

Ms Hurley

Applicant

And

Mr Melton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Hurley seeks an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to her proposed cross-examination of Mr Melton.[1] 

   [1]see s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth).

2. Given that both parents in these proceedings are litigants in person, if made, the order sought by Ms Hurley would have consequences for both parties because both would be prohibited from cross-examining the another, and the cross-examination to be undertaken in the proceedings on behalf of each of them would be required to be undertaken by a legal practitioner acting on the behalf of each of them as an examining party.

3. If the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) are to apply to the cross-examination, then, as I have said, each party must not cross-examine the other personally and the cross-examination must be conducted by a legal practitioner.

4. The Court may make an order under s 102NA(1)(c)(iv) on the application of an examining party, as Ms Hurley will be in the proceedings listed for trial later this year.[2]

   [2]see s 102NA(3)(b)(ii) of the Family Law Act 1975 (Cth).

5. The evidence Ms Hurley relies on in support of her Application is contained in her affidavit, sworn or affirmed on 21 October 2020.  The contents of the same may be summarised as follows:

   a)that a previous application for the making of a domestic violence order was dismissed on 20 November 2013 on the basis that there then existed a consent order made in the Federal Circuit Court in February 2013 which included terms which:

   i)prohibited Mr Melton from entering or attempting to enter or approach within 100 metres of the premises where Ms Hurley lived, other than to enable him to collect or return to the child to her residence; 

   ii)provided that he be of good behaviour and not commit domestic violence against her;

   iii)prohibited him from contacting her or attempting to contact her, or asking someone else to contact her, other than to enable him to comply with the terms of that order;

   iv)prohibited him from following or approaching within 800 metres of her when she was at any place; and

   v)prohibited him from using the internet, including social networking sites, to communicate with, publish pictures of, or make comments concerning her other than to enable him to comply with the orders or as a consequence of a written request by Ms Hurley; and

   b)that Carew J previously imposed what Ms Hurley termed in her affidavit as “between-party cross-examination protection” by directing that cross-examination during the proceedings her Honour conducted between 3 and 7 April 2017 be conducted using video link; and

   c)her assertion that she is fearful of being cross-examined by Mr Melton and wants to avoid what she terms “one-on-one conflict.”

6. There is no evidence before the Court to suggest that there is, at present, an operative domestic violence order or family violence order as between the parents in this case. 

7. There is no evidence from Ms Hurley to suggest that Mr Melton has, since the 2013 order was made in the Federal Circuit Court, acted toward her in a manner capable of satisfying the definition of “family violence” provided in s 4AB of the Family Law Act 1975 (Cth): that is, there is no evidence of violent, threatening or other behaviour by Mr Melton that coerces or controls Ms Hurley or causes her to be fearful. Ms Hurley’s assertion that she is fearful of Mr Melton does not, it seems to me, establish the existence of family violence as defined in s 4AB of the Act, given the reference in the definition to “behaviour.”

8. In addition, I note that, during interviews conducted on 12 and 13 May 2020 for the preparation of the most recent Family Report prepared by Ms KK, dated 21 May 2020, Ms Hurley is recorded as having raised no concerns in relation to any issues of family violence with the father in the last three years.  It is recorded that: she denied any involvement with the police in relation to Mr Melton in this time; she denied any safety concerns for herself or any issues with threats or intimidation; and that, whilst she informed Ms KK that she and Mr Melton communicated only via email, that was, according to her, “sometimes not nice or polite”, she is recorded as having denied that the contents of emails were abusive.[3]

   [3]Paragraph [70] of the Family Report 21 May 2020.

9. Further, at paragraph [75] of the Family Report, Ms KK records Mr Melton denying any significant issues with threats or intimidation, although she also records that he reported interaction with Ms Hurley’s partner, Mr JJ. 

10. Despite these matters, I also note, though, that at paragraph [84] of Ms KK’s report, she recorded the father’s – that is, Mr Melton’s – account of a relatively recent telephone communication between Ms Hurley and his partner which, on his reporting, ended with Ms Hurley making comments capable of being regarded as constituting verbal abuse.  Whether such comments were in fact made or not is, of course, an issue that remains in dispute.

11. Ms Hurley’s reference in her affidavit to Carew J’s use of video link during the proceedings before her Honour in April 2017, which were finalised by parenting orders made on 25 May 2017, takes up the contents of paragraph [4] of the Reasons her Honour delivered on 25 May 2017.  Reference to those Reasons seems to me to establish the following:

    a)the issues the parties identified as relevant to the determination then of the parenting orders in B’s best interests included whether there was an unacceptable risk of B being exposed to family violence if her father spent time with her; and, secondly,

    b)whether Ms Hurley had orchestrated and fabricated allegations of family violence, as well as allegations of sexual abuse, against Mr Melton. 

12. Reference to her Honour’s Reasons establishes that her Honour found that on 11 March 2012, having consumed alcohol over a period of time, Mr Melton punched and damaged a door in Ms Hurley’s unit and pushed a screen door back such that it fell off its rollers and knocked over some pot plants.[4]

    [4]see Reasons for Judgment delivered 25 May 2017 at [273] and [274].

13. Reference again to Carew J’s Reasons for Judgment also establishes that her Honour did not accept Ms Hurley’s evidence about an alleged “horse kick” on 22 July 2012, or about a document she had alleged Mr Melton had signed which contained a reference to “excessive drinking or violence” which Ms Hurley then sought to rely on to corroborate her allegations of family violence alleged to have been perpetrated by him on her.[5]  

    [5]see Reasons for Judgment delivered 25 May 2017 at [277] and [278].

14. According to paragraph [280] of her Honour’s Reasons, she noted that the information Ms Hurley provided to the author of the Family Report on 14 September 2015, as set out by her Honour in paragraph [279] of the Reasons for Judgment, was an account that was markedly different to any version of event or events given by Ms Hurley in the proceedings before her.

15. In addition, as is outlined in paragraph [284] of the Reasons for Judgment, her Honour did not accept Ms Hurley’s account of events on 25 May 2013, and clearly did not accept evidence by Ms Hurley that the father had been verbally abusive to her and her partner that day.  However, her Honour did record that it was of some concern that, by attending at Ms Hurley’s residence, Mr Melton appeared to have failed to comply with both an undertaking and an order.[6]  Her Honour also recorded her finding that it was more likely than not that, on 22 March 2014, Mr Melton told Ms Hurley’s then-partner:  “I am going to kill you”.

    [6]see Reasons for Judgment delivered 25 May 2017 at [284].

16. Her Honour did not accept, though, for the reasons expressed in paragraph [288], that Mr Melton had made a threat to “kill them all.”  Also at paragraph [288] of the Reasons for Judgment delivered by her Honour, her Honour rejected Ms Hurley’s evidence that she then considered her life and B’s life to be at risk; and her Honour found it more likely than not that Ms Hurley had used the threat to her advantage in proceedings.

17. Paragraph [288] of her Honour’s Reasons also record her Honour’s rejection of Ms Hurley’s evidence that she was “on the run” for four months.  Her Honour also rejected the evidence given by Ms Hurley’s then-partner that he had left H Town area because he feared Mr Melton. 

18. Her Honour found at paragraph [290] of the Reasons that, in all, Ms Hurley had instigated three domestic violence order applications against Mr Melton, and that of these, two were withdrawn and the third dismissed. 

19. Her Honour also found, at paragraph [307], that Ms Hurley’s statement to Dr FF, whose evidence her Honour discussed at paragraphs [264] and [265], and about which she expressed her conclusions at paragraphs [266] and [267], that she had “lived in fear the whole time” was a statement which was contrary to the evidence as a whole.  Her Honour expressed at paragraph [317] also that Ms Hurley had previously sent the father text messages which included a threat to obtain a DVO if he did not pay her money for B. 

20. At paragraph [308] of the Reasons, her Honour outlined her finding that there was, as I have already noted, one incident in 2012 where Mr Melton punched a door, causing damage; in paragraph [308] particularly, her Honour recorded a finding that this was “likely to have caused the mother” to be fearful “at the time.”  Further, in paragraph [308] of her Honour’s Reasons, she rejected Ms Hurley’s account of other violence against her, because of what her Honour expressed as: “her failure to call witnesses, the inconsistencies in her evidence, and her tendency to exaggerate.”

21. I also note that the most recent Protection Order referred to in the Reasons delivered by Carew J on 25 May 2017 was a Temporary Protection Order made on 27 March 2017.[7] 

    [7]see Reasons for Judgment delivered 25 May 2017 at [289].

22. As already noted, there is no evidence before me to suggest that any Protection Order has been made since March 2014.  There is no evidence by Ms Hurley that Mr Melton has, at least since then, behaved toward her in any manner capable of providing the basis for the making of a Protection Order; and there is no evidence from Ms Hurley of any behaviour by Mr Melton toward her since orders were made in May 2017.

23. I also note that, at paragraph [310] of her Honour’s Reasons for Judgment, Carew J found that there was no evidence of any violence in Mr Melton’s relationship with Ms F, his current partner. 

24. The Family Law Act 1975 (Cth) contains no statutory guidance about matters to be considered by a Court in determining whether or not to make an order that the requirements of s 102NA(2) apply to the cross-examination referred to in s 102NA(1) of the Act. However, the purpose of the legislation by which sections 102NA and 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied that Bill. The contents of the same included that:

    Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence.  It can also be problematic for victims to personally cross-examine their alleged perpetrator, due to the power imbalances created by family violence.

25. 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.

Authorities

1. There are no decisions of the Full Court of this Court of which I am aware that have considered the manner in which, and the factors which, a Court should consider in determining whether to make an order that the requirements of s 102NA(2) of the Act are to apply to cross-examination in any particular case.

2. There are, however, a number of decisions of single Judges of this Court in which Applications or orders such as Ms Hurley’s Application have been either made or refused. 

3. I turn now to a consideration of some of those single Judge decisions, with the purpose of attempting to identify and apply consistently matters identified by other members of the Court in their consideration of similar Applications. 

4. In Ferreira & Ferreira[8], Gill J ordered that s 102NA requirements applied to the cross-examination in circumstances where the mother had previously had a family violence order in place against the father for two years, but it had expired.  His Honour noted there were serious allegations of family violence that would require resolution, and that there was a risk that, absent an order, the proceedings would be undermined.

   [8](2019) 60 Fam LR 19.

5. In Banks & Smythe,[9] Cleary J ordered that the requirements of s 102NA(2) apply in circumstances where findings had previously been made in the Court in Reasons for Judgment delivered on 8 November 2016 that the father in those proceedings was the perpetrator of family violence against the mother; she noted that he had conceded that he had been charged with a domestic violence offence in 2016 for which he was placed on a good behaviour bond for 12 months, with no conviction recorded.

   [9][2019] FamCA 604.

6. In Thompsett & Keen and Ors,[10] Gill J ordered that the requirements of s 102NA(2) applied to specified cross-examination in circumstances where there was no operative family violence order; there were significant allegations of family violence; there were allegations of conduct that, if accepted, were capable of constituting severe forms of coercion or control such that his Honour concluded that, if they were true, the purpose and objectives of the provision would not be met if an order was not made. His Honour also concluded in that case that, even though the allegations were unproved, they were of significant severity that it was appropriate, in the exercise of discretion, to make an order that s 102NA(2) apply to the cross-examination.

   [10][2019] FamCA 673.

7. In Donne & Scully,[11] Tree J ordered that the requirements of s 102NA(2) apply in circumstances where allegations had been made by the mother against the father. There was a previous final domestic violence order, but that order had expired earlier in 2019. His Honour noted that there was a further hearing and application for a further final domestic violence order later that year, prior to the trial dates, such that, if a final domestic violence order was in fact made, the trial would have been unable to proceed on its listed dates.

   [11][2019] FamCA 785.

8. In Chard & Yong (No. 2),[12] Gill J ordered that the requirements of s 102NA(2) apply to the cross-examination in circumstances where each party had made serious allegations of family violence against the other; the father had alleged that he had been subjected to persistent and ongoing family violence by the mother and asserted that, given that, he did not think he could cross-examine the mother personally without legal representations. The mother had alleged that she had been subjected to extreme family violence perpetrated against her by the father. There had previously been a family violence order in place, although that was no longer the case. His Honour concluded it was reasonable to conclude that it would be an untenable position for the parties that each of them was required to go through the process of cross-examination personally.

   [12][2019] FamCA 948.

9. In Muratov & Muratov,[13] Baumann J made an order that the requirements of s 102NA(2) apply in circumstances where a previously-made domestic violence order (an order made on 25 January 2016) had expired.

   [13][2019] FamCA 1014.

10. In Abadi & Sokulsky,[14] Gill J declined to make an order that s 102NA(2) applied, despite circumstances which included that the mother’s material contained allegations of serious historical family violence against the father – which included physical acts, intimidation and stalking, matters which his Honour regarded, with respect correctly, as constituting serious allegations of family violence. In that case, the father advanced that an order was justified. However, the mother, who had alleged that she was the victim of the family violence perpetrated by the father, wanted to continue with the proceedings even though to continue would mean that she would be cross-examined personally by the father. His Honour’s Reasons record that at least part of the mother’s rationale was to remove the spectre of further delay in the finalisation of already-delayed proceedings. He also noted, of course, that the Court has the statutory power to control the questioning undertaken in cross-examination and that the mother in that case before him was herself legally represented.

    [14][2020] FamCA 64.

1. In Owen & Owen,[15] Gill J dismissed an application seeking an order that the requirements of s 102NA(2) apply. His Honour did so in circumstances where the Court had been advised, at that time, that there was uncertainty about the existence of funding for the provision of legal representation of the father if an order was made – as the previous allocation of funding had been exhausted. His Honour also noted the generality of the mother’s descriptions of the alleged family violence and concluded the generality was such that it deprived the same of the capacity to support the proposition that the mother would be at risk of re-traumatisation or be likely to suffer a compromise of her capacity to give evidence. He noted, in addition, that the most serious allegation of family violence was behaviour alleged to have been perpetrated by the father against a child of the parties, rather than the mother. His Honour also concluded, at paragraph [46] of his Honour’s Reasons, that even if the other factors in the matter before him sufficiently pointed to the making of an order, uncertainty about the funding of the associated scheme would have been sufficient to decline to make the order because of the impact on the integrity of the process which would result from the making of the order: in that, the parties would be prohibited from challenging evidence led by the other through cross-examination.

   [15](2020) 60 Fam LR 334.

2. Given Ms Buchanan’s advice earlier today that, if the requirements of s 102NA(2) of the Act apply and each of the parents make application to the scheme, they will be allocated legal representatives, it is unnecessary that I do more than record my respectful disagreement with his Honour’s conclusions in this respect. Given the recommendations made by the Legal and Constitutional Affairs Committee, to which his Honour referred at paragraph [27] of his Reasons, I respectfully suggest that, having introduced the amendment for the purposes outlined in the Explanatory Memorandum, the intended operation of s 102NA and the continued appropriate funding of the Schemes associated with it are intrinsically linked. To my mind, the stated of purpose and intention of s 102NA cannot properly be achieved absent the provision of sufficient funding to the Schemes established to facilitate the operation and implementation of the requirement that the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

3. In Scritton & Javins,[16] Gill J ordered that s 102NA(2) apply in circumstances where the mother had a criminal conviction for property damage which occurred in the context of an altercation between the parties; various interim family violence orders had been in place; and the mother had made a litany of serious, but undetermined, allegations of family violence against the father. His Honour considered that, whilst no findings about the same had been made, the matters were of “such intensity and volume” as to call into operation s 102NA(2) as important to the integrity of the evidence in the proceedings and the protection of each of the parties.

   [16][2020] FamCA 316.

4. In Hills & Caldwell,[17] Rees J declined to make an order that the requirements of s 102NA apply in circumstances where it was accepted that, if such an order was made, the substantive hearing would be delayed, perhaps for many months.  The father denied perpetrating family violence against the mother.  The parties had separated in October 2015.  Whilst an interim Apprehended Violence Order had been made in December 2015 for the protection of the mother, police did not proceed with the same and the interim Apprehended Violence Order had expired and no final order had ever been made.   Her Honour noted the mother’s allegations included a sexual assault, absent significant detail, verbal denigration, demeaning comments, controlling behaviour, but no other assertion of physical assault.  Her Honour also noted that the only issue to be determined or resolved in the case before her was the allocation of parental responsibility.  She noted that the parents had co-parented their children for the nearly five years since their separation and that, as both had outlined that they thought the operative parenting regime was well-established and working well for the children, the scope of cross-examination would be limited to matters relevant to the issue of parental responsibility.  Her Honour also noted that the Court would exercise its power to control the same so that matters not relevant to that issue would not be traversed.

   [17][2020] FamCA 574.

Consideration

1. In this case, Carew J has made findings that Mr Melton previously punched and damaged a door in Ms Hurley’s unit and pushed a screen door back such that it fell off its rollers and knocked over pot plants.[18]  Her Honour also found that this behaviour was likely to have caused Ms Hurley to be fearful at the time.[19]   In this case, there is no recent suggestion of family violence allegations by Ms Hurley against the father, but there are allegations raised by Mr Melton that Ms Hurley has been verbally abusive over the telephone to his partner. 

   [18]see Reasons for Judgment delivered 25 May 2017 at [273] and [274].

   [19]see Reasons for Judgment delivered 25 May 2017 at [308].

2. The issue for determination in this case now is whether it is in B’s best interests that supervision of her time with her mother be removed, which issue of itself necessarily involves consideration of Ms Hurley’s current attitudes, beliefs and behaviours – matters which, it seems to me, are likely to require exploration via cross-examination.

3. Here, Ms Hurley has expressed a fear of being cross-examined by Mr Melton and a desire to avoid the “one-on-one conflict”, which I infer she considers likely to result from a circumstance where each parent is required to cross-examine the other.  In this case, I consider it more likely than not, given the evidence adduced by Ms Hurley, that absent previous orders made in the Federal Circuit Court, a domestic violence order would likely have been made in 2013, given the finding by the magistrate expressed in the document exhibited by Ms Hurley to her affidavit that domestic violence had occurred. 

4. Whilst any order which may have been made then would clearly likely have expired by now, it is clear from authorities to which I have referred that the expiration of a family violence order is a matter to be taken into account; in other cases to which I have referred, an expired family violence order has been a circumstance taken into account and considered to be sufficient to provide a basis for the Court to be persuaded that it is appropriate to make an order that the requirements of s 102NA (2) apply to a cross-examination.

5. In this case, as I have already noted, Ms Buchanan, the Independent Children’s Lawyer, has very helpfully advised the Court of information provided to her by those responsible for administering the Scheme to the effect that if an order is made today and the parents apply, legal representation will be made available to them in time to allow the trial to proceed in December as listed.

6. Whilst some of the factors I have outlined favour the making of an order sought by Ms Hurley and others do not, the fact of Carew J’s findings about Mr Melton’s behaviour in 2012, her Honour’s findings about the impact on Ms Hurley of the same at the time of the occurrence and the fact of Mr Melton’s account to the author of the most recent Family Report of Ms Hurley’s asserted verbal abuse of his partner more recently, combine to persuade me, on balance, that it is appropriate in this case to make an order that the requirements of s 102NA(2) apply to these proceedings.

7. Consequently, I make an order, pursuant to s 102NA(1)(c)(iv), that the requirements of 102NA(2) apply to the cross-examination.

8. It is also appropriate, therefore, that I include in the order various Notations to assist the self-represented parents to access the Scheme.  Included in the Notations will be a Notation providing a contact email address link.  The Notations also record information already provided to the parties earlier today. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 October 2020.

Associate:

Date:              22 October 2020