Joyner & Lyons
[2025] FedCFamC2F 168
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joyner & Lyons [2025] FedCFamC2F 168
File number(s): HBC 825 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 14 February 2025 Catchwords: FAMILY LAW – Application for orders to ban personal cross-examination – Section 102NA requirements – whether satisfied – concerns about use of legal aid cross-examination scheme – time when requirements for making order are to be satisfied – one party still legally represented – financial impecuniosity not a pre-requisite to making order – inference that both parties will be self-represented by defended hearing and each will cross-examine – necessity to ensure defended hearing dates are held - mutual Section 102NA orders made based on discretion pursuant to s102NA(1(c)(iv) of the Family Law Act 1975 (Cth) Legislation: Family Law Act 1975 (Cth) 102NA(1)(a), 102NA(1)(b), 102NA(1)(c)(i), 102NA(1)(c)(ii), 102NA(1)(c)(iii), 102NA(1)(c)(iv), 102NA(2) Cases cited: Carano & Carano [2023] FedCFamC2F 1566
Hills & Caldwell [2020] FamCA 574
Hurley and Melton (No 2) (2020) 61 Fam LR 405
Naisby & Naisby (No 2) [2024] FedCFamC1F 699
Owen & Owen [2020] FamCA 90
Peng & Anh [2023] FedCFamC1F 281
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 5 February 2025 Place: Hobart For the Applicant: In person Solicitor for the Respondent: Ms Grant of Butler McIntyre & Butler ORDERS
HBC 825 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JOYNER
Applicant
AND: MS LYONS
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth), orders are made in respect of each party pursuant to section 102NA(2) banning personal cross-examination of the other party for the defended hearing commencing 28 April 2025.
THE COURT NOTES THAT:
A.The Applicant and Respondent must each forthwith apply to Tasmanian Legal Aid for a grant under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable them to cross examine the other party.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 5 February 2025, I heard the parties in respect to an application by letter dated 28 January 2025. The application is made by the respondent mother in these parenting proceedings and seeks an order pursuant to s102NA(2) of the Family Law Act 1975 (Cth) that bans each party from personally cross-examining the other at the defended hearing commencing 28 April 2025 (“the defended hearing”).
The applicant father opposes the order sought as it relates to the mother, but consents to an order being made in respect of him. The father has been and is currently self-represented.
In support of the making of the s102NA(2) order in favour of both parties, the mother’s solicitor relied on:
(a)The Child Impact Report dated 30 January 2024 at [25];
(b)The affidavit of the mother of 28 March 2024 at [98] to [102];
(c)The Notices of Child Abuse and Family Violence filed by the father in late 2023 and early 2024;
(d)The Notice of Child Abuse and Family Violence filed by the mother in late 2023; and
(e)The family violence order made in early 2024 for a period of 12 months and due to expire shortly prior to the defended hearing.
The material referred to above demonstrates the following and I find:
(a)There has been a family violence order in place protecting the mother since early 2023, with the current order due to expire in early 2025;[1]
(b)The mother has alleged that during the relationship there were:[2]
(i)Numerous occasions of verbal abuse, denigration, anger outbursts, and put downs which scared the mother;
(ii)Physical violence where the father pushed the mother, blocked her from leaving, and whacked his hand on her hatted head; and
(iii)Withholding the child in September 2023 without reason when the interim family violence order was in place.
[1] Due to expire in early 2025, see the affidavit of the mother filed 28 March 2024 at Annexure A.
[2] See the Notice of Child Abuse Family Violence filed by the mother on 8 November 2023 at [35] and [29], the affidavit of the mother filed 28 March 2024 at [98] to [102].
The mother’s solicitor also alleged the father has made needless or false allegations about the mother’s mental health as a means of coercion or control during the proceedings.
By amended Notice of Child Abuse Family Violence filed early 2024, the father makes allegations of physical violence by the mother towards him and alleges abuse or harm due to the mother’s mental health.
The father relied upon his affidavit of 5 February 2025 at [26] to [29] about the mother’s financial position. I have read the evidence, but for the reasons below at [17], I am compelled to give it no weight in determining whether a s102NA(2) order should be made, despite policy concerns that I have about the risk of depleting funding availability under the s102NA cross-examination scheme and the scheme being used to pursue potentially unmeritorious causes.
During submissions, I made an inquiry of the solicitor for the mother in relation to whether the court had to make the s102NA(2) if one of the prerequisites specified in s102NA(1)(c)(i) to (iii) were satisfied at the time of application or when cross-examination of the witness party was to occur.[3] This was relevant to whether I may be required to make the s102NA order or whether I should only make the order if I was satisfied I ought exercise the discretion referred to in s102NA(1)(c)(iv) and other requirements in s102NA(1)(a) and (b) were also satisfied.
[3] Assuming the conditions in s.102NA(1)(a) and (b) were also satisfied.
The mother’s solicitor submitted that the relevant time for satisfaction of the preconditions was the date of application because the terms of s102NA(1) is expressed as:
(1) If, in proceedings under this Act:
(a)a party … intends to cross-examine another party…
I took this submission to mean that the reference to “intention” meant that as a matter of statutory interpretation, the s102NA(2) order could be made on application at any stage of the proceedings, regardless of how proximate to a cross-examination event the application was made.
THE LAW
As I noted during the course of the hearing on 5 February 2025, there is some guidance in relation to the interpretation, construction and purpose of section 102NA(1) and s 102NA(2) of the Act. For example:
(a)Hurley and Melton (No 2) (2020) 61 Fam LR 405, the purpose of the statutory provisions is gleaned from the Explanatory Memorandum relating to the provisions. They include having regard to protect 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 to adequately cross-examine the perpetrator;
(b)Owen & Owen [2020] FamCA 90 per Gill J at [2] to [28], identifying that the preconditions to making an order are:
(i)An intention to cross-examine a witness party by a party in person;
(ii)An allegation of family violence between the examining and witness party; and
(iii)Satisfaction of one of the factors in s102NA(c) of the Act.
(c)Hills & Caldwell [2020] FamCA 574,[4] where the conditions in s102NA(1)(c) (i), (ii) and (iii) are not satisfied and the Court may rely on the discretion at s102NA(1)(c)(iv) for the purpose of being satisfied that the order should be made, it is relevant to consider if the allegations of family violence are vague or sparse in nature or a single allegation only;
(d)Where the conditions in s102NA(1)(c) (i), (ii) and (iii) are not satisfied and the Court may rely on the discretion at s102NA(1)(c)(iv), it is relevant to consider if the examining party would be overborne by the experience of having to cross examine the other party, such that there would not be a fair hearing;[5]
(e)Naisby & Naisby (No 2) [2024] FedCFamC1F 699 at [6], it is the allegation that is important, not the truth of it or the prospect of it being proved at trial. But the truth of allegations is not irrelevant to the exercise of the discretion under s 102NA(1)(iv);
(f)Carano & Carano [2023] FedCFamC2F 1566, where the preconditions in s102NA(1)(i),(ii) and (iii) were not satisfied, but the Court considered the likelihood of an order in the near future and the seriousness of the allegations of family violence to be a basis for exercising the discretion in s102NA(1)(c)(iv), to ensure the hearing proceeded in a seamless and timely manner;
(g)Peng & Anh [2023] FedCFamC1F 281, where the making of a cross-examination ban order pursuant to s102NA(2) is dependent on the exercise of discretion in s102NA(1)(c)(iv), it is necessary for the Court to be satisfied that the witness party is required for cross-examination by the examining party and that the examining party intends to personally conduct the cross-examination; and
(h)Where the pre-conditions to making an order are satisfied, the order applies to the purported victim or perpetrator alike.[6]
[4] Citing Owen & Owen [2020] FamCA 90.
[5] Citing Owen & Owen [2020] FamCA 90 at [35].
[6] Owen & Owen [2020] FamCA 90 at [9].
Although I have not found an authority that directly addresses the issue posed to the solicitor for the mother, as a matter of construction I consider that the time for satisfaction of the preconditions for making an order pursuant to s102NA(2) must be forward-looking and at the time the intended cross-examination is to occur. If were otherwise, there would be capacity to obtain a pre-emptive order very early in the proceedings having the effect of banning cross-examination which may never be sought or may for some other reason become unnecessary at a future time.
Further, in theory, it could mean that a party regardless of whether they can afford to retain a lawyer or obtain a regular grant of aid and be represented by a lawyer, would be entitled to have an order made irrespective of when or if cross-examination occurs. This would be inconsistent with the intent of the statutory provisions as demonstrated by the Explanatory Memorandum and as discussed in Hurley and Melton (No 2) (2020) 61 Fam LR 405 and other authorities cited in these reasons.
EVALUATION AND CONCLUSION
There is a claim, but no evidence, that the mother will be self-represented at the time of the defended hearing and an inference that she will require the father for cross-examination. The mother is presently legally represented and merely asserts through her lawyer that she will be self-represented at the defended hearing due to being unable to pay legal fees.[7]
[7] See Costs Notice of the mother filed 5 February 2025.
The father submitted he would be unrepresented at the final hearing, and he has been for a significant time in these proceedings. He also says that he cannot afford to pay legal costs. However, there is no evidence that he will require the mother for cross-examination.
Each party claims that I should accept that they cannot afford legal fees and so will self-represent at the final hearing but the evidence about their financial circumstances is scant and contested.
Section 102NA is silent about a party’s capacity to pay for legal representation and certainly does not make impecuniosity a requirement of making an order. Further, eligibility for a grant of aid pursuant to the s102NA scheme is not presently means-tested or merits-tested in Tasmania or in other States.
The parties claim that they cannot afford legal representation, but there is limited and untested financial evidence before me. That information causes me to doubt the bone fides of the parties’ assertions that they cannot afford legal representation. But this close to the defended hearing, I am effectively compelled to accept their claims that they will be self-represented at the defended hearing as the Court cannot compel a party to pay for private legal representation.
Despite the absence of evidence that either party requires the other for cross-examination at the defended hearing, I am prepared to infer that this is the case because of the litigious approach the parties have taken to the proceedings, of which I am aware from case management hearings conducted by me.
I am satisfied that there are allegations of family violence between the parties, being the precondition required in s102NA(1)(b).
At the time of cross-examination of one another at the defended hearing, the pre-conditions at s102NA(1)(c)(i), (ii) or (iii) will not be satisfied. However, I am persuaded that I ought to exercise my discretion pursuant to s102NA(1)(a)(c)(iv) in respect of both parties because of the findings referred to at [4] of these reasons. That is irrespective of the concerns expressed in these reasons at [17], [18] and [19].
For the sake of the fair and effective administration of justice, in my view:
(a)Only genuinely self-represented parties who do not have financial means to pay for legal advice privately should seek s102NA(2) orders where the ban to personal cross-examination is justified for the policy reasons discussed in Hurley & Melton (No.2) (2020) 61 Fam LR 405;
(b)Applications for cross-examination ban orders should only be made within two to three months from when the cross-examination is to occur;
(c)If it is necessary to make application for an order, there should be relevant evidence put before the Court about all the prerequisites in s102NA(1), including evidence which identifies if there are grounds for the order because of one of subsections s102NA(1)(c)(i), (ii) or (iii) or otherwise if the discretion in subsection s102NA(1)(c)(iv) is relied upon, evidence weighing in favour of exercising discretion; and
(d)Consideration should also be given to whether directions made pursuant to s102NAB would otherwise provide the necessary protections about cross-examination between the alleged victim and perpetrator.
In this instance, for the reasons [14] to [21], I will make an order that s102NA(2) applies in respect of both parties.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 14 February 2025
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