Kabir & Kabir
[2022] FedCFamC1F 692
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kabir & Kabir [2022] FedCFamC1F 692
File number: CAC 2337 of 2019 Judgment of: GILL J Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where both parties are self-represented – Where there are contentious and serious allegations of family violence perpetrated by both parties – Where the mother has indicated that she would not be able to directly cross-examine the father – Consideration of application of s 102NA of the Family Law Act 1975 (Cth) – Where s 102NA does not require for proof of family violence, but that there be an allegation of family violence – Where there is a potential risk that available evidence is compromised in the trial and there is aggravation of personal impact, if the parties engage in direct cross-examination of each other. Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Owen & Owen (2020) 60 Fam LR 334 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 12 September 2022 Place: Canberra Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondent: Self-represented litigant ORDERS
CAC 2337 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KABIR
Applicant
AND: MR KABIR
Respondent
order made by:
GILL J
DATE OF ORDER:
13 September 2022
THE COURT ORDERS THAT:
1.It is directed that the requirements of s 102NA(2) apply to the proceedings between Ms Kabir and Mr Kabir.
2.In the event that either party seeks representation via the Commonwealth scheme for the provision of lawyers to persons the subject of a s 102NA(2) prohibition, then such party is directed to approach the Legal Aid Commission of the ACT (“the Commission”) within 48 hours of the delivery of these orders in pursuit of such representation and is to provide the Commission with a copy of this judgment.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Kabir & Kabir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
By an Amended Application in a Proceeding, filed 10 September 2022, the mother seeks that there be a discretionary order made pursuant to s 102NA(1)(iv) of the Family Law Act 1975 (Cth) (“the Act”). The parties were heard in relation to this application during a directions hearing for allocating trial dates for contempt proceedings against the mother (listed for 6 October 2022) and a final trial of the proceedings between the parties listed for 12 December 2022.
In summary, s 102NA of the Act, where applicable, prohibits personal cross-examination by one party of another during proceedings. Where it applies, cross-examination can only take place through a legal practitioner. At present, each of the parties is self-represented.
Although in some cases s 102NA has mandatory application, this is not one of those cases. Rather, the mother’s application relies upon the discretion to apply the ban on personal cross-examination contained at s 102NA(1)(iv). That discretion is enlivened as there are mutual allegations of family violence made by each of the parties. Those allegations are highly contentious.
From his initial affidavit, the father asserted that the mother suffers from mental health issues, has been involuntarily admitted to hospital, recited a history of family violence proceedings in Queensland being commenced against him but dismissed in mid-2019 (it appears that those proceedings were instituted by Queensland police, rather than the mother), alleges that the mother has made threats to harm herself, him, the children and the father’s family, and that the mother has made multiple suicide attempts.
From her initial affidavit, the mother has asserted that the father engaged in controlling behaviour and assaulted her, causing her to have early recourse to domestic violence agencies and to suffer multiple admissions to hospital occasioned by the behaviour of the father. She asserts that he has made death threats against her. In particular, she alleges an instance of an assault involving the father choking her that she asserts resulted in her having an emergency caesarean procedure. This is one of the more contentious matters as the father asserts that the mother’s account is contradicted by the medical records. A previous judgment in relation to contravention proceedings conducted between the parties considered that the matter was not as clear-cut as the father alleged. Despite the uncertainty that accompanies the allegations, the allegations are serious and if true, carry with them the inherent likelihood that the mother would be impaired in either the giving of evidence or the testing of evidence by virtue of that history, should she be required to directly cross-examine, or be directly cross-examined by the husband.
This serious history of family violence occurs against a background where, in contravention proceedings, conclusions were reached that the father was unreliable to the extent that on occasions his evidence was rejected and further conclusions were made that the mother was disingenuous in the claims that she had made about being present for hand-over. Hence, there are contentious allegations of family violence against a background of questionable reliability on the part of each of the litigants.
It is important to bear in mind that s 102NA does not require the proof of family violence, but does require that there be an allegation of family violence in the context where a party intends to cross-examine another party. Although the mother indicated that she did not consider that she would be able to directly cross-examine the father, it may be inferred that at least one of the parties will seek to directly cross-examine the other party given that each is self-represented.
The issue that arises is whether or not the discretion should be exercised to prohibit such cross-examination taking place. In considering that discretion, it is important to bear in mind the mischief being addressed by s 102NA. In Owen & Owen (2020) 60 Fam LR 334, I identified that mischief and purpose:
29.In broad terms it may be discerned that the mischief being remedied/purpose of the enactment, involves:
a.The protection of alleged victims of family violence from re-traumatisation due to being cross-examined by the alleged perpetrator;
b.The preservation of the integrity of the evidence in the proceedings by:
i.Enabling alleged victims of family violence to give evidence under circumstances that promote their ability to give clear evidence;
ii.Not requiring alleged victims of family violence to cross-examine alleged perpetrators of family violence in a context of power imbalance;
iii.Providing a mechanism for cross-examination where direct cross-examination is not allowed.
In the context of the serious but unresolved allegations of family violence, it may be concluded that in person cross-examination may result in the compromise of the evidence available in the proceedings and also aggravate the personal impact of the proceedings upon the litigants (or at least the mother who makes the application).
Under those circumstances, the object of the provision is met by the exercise of the discretion to impose the ban and an order will be made accordingly.
It may be observed that the effect of such an order is not only that the parties will both be prohibited from engaging in direct cross-examination of the other, but that they will each have made available to them legal representation under the scheme set up by the Commonwealth, to ensure that persons the subject of the ban are still accorded procedural fairness by having legal representation made available to them.
It will be incumbent upon the parties to immediately pursue such representation, if they intend to take advantage of the scheme. Failure to do so may see a party deprived of the ability to challenge the evidence of the other party by cross-examination.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 September 2022
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