Joyner & Lyons - [2025] FedCFamC2F 168

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joyner & Lyons

Details

AGLC: Joyner & Lyons [2025] FedCFamC2F 168
Case: [2025] FedCFamC2F 168
Decision Date: 14 February 2025

CaseChat Overview and Summary

The matter in Joyner & Lyons was an application by the applicant, Mr Joyner, to the Federal Circuit and Family Court of Australia, seeking orders to prohibit personal cross-examination of the respondent, Ms Lyons, at the defended hearing of their family law dispute. The primary concern was the potential for personal cross-examination to exacerbate any family violence issues between the parties and to ensure that both parties could adequately present their cases without undue distress.

The court was required to determine whether the criteria under section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) were met, which permit the court to make orders banning personal cross-examination. This involved considering whether there were substantial reasons to believe that personal cross-examination would be detrimental to the health or wellbeing of either party and if there was a reasonable likelihood that both parties would be self-represented at the defended hearing. The court also had to address the timing of when these criteria must be satisfied and whether financial impecuniosity was a prerequisite for such orders.

The court found that the criteria under section 102NA(1)(c)(iv) were indeed satisfied, based on the evidence presented regarding the history of family violence between the parties and the potential for personal cross-examination to exacerbate this situation. The court concluded that it was in the best interest of both parties to ensure that the defended hearing could proceed without the added stress of personal cross-examination. Accordingly, mutual orders banning personal cross-examination were made. The court also directed both parties to apply to Tasmanian Legal Aid for grants under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable them to cross-examine the other party through a legal representative.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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