Lazer & Haines
[2022] FedCFamC1F 35
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lazer & Haines [2022] FedCFamC1F 35
File number(s): LEC 208 of 2019 Judgment of: JARRETT J Date of judgment: 3 February 2022 Catchwords: FAMILY LAW – CHILD WELFARE – The Family
Law Act 1975 (Cth) and related legislation – s 102NA of the Family Law Act 1975 (Cth) – statutory interpretation – discretionary ban on personal cross-examination – relevant factors to considerLegislation: Family Law Act 1975 (Cth) ss 102NA(1)(c)(i) – (iii), 102NA(1)(c)(iv), 102NA(2)
Victims Rights and Support Act 2013 (NSW)
Cases cited: Hurley and Melton (No. 2) (2020) 61 Fam LR 405
Owen and Owen (2020) 60 Fam LR 334
Division: Division 1 First Instance Number of paragraphs: 28 Date of last submission/s: 23 December, 2021 Date of hearing: By written submission Place: Brisbane Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: Walters Solicitors Solicitor for the Respondent: In person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
LEC 208 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAZER
Applicant
AND: MS HAINES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
3 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) are to apply to the cross-examination of the applicant by the respondent in these proceedings.
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 Lazer & Haines is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
The principal application for parenting and property orders between these parties is set down for final hearing in Lismore from 16 to 20 May, 2022 before me.
By an oral application made on 25 November, 2021 before another judge of this Court, the respondent, Ms Haines, seeks an order pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) that the requirements of s 102NA(2) of the Act are to apply to the cross-examination of the applicant by her for the purposes of the trial.
Upon the making of that application, another judge of this Court made directions for the respondent to file and serve an affidavit providing any evidence to support the making of the order sought by her. Both the applicant and the Independent Children’s Lawyer were given the opportunity to make written submissions as to the making of the order sought by the respondent. The applicant has made written submissions. The Independent Children’s Lawyer has made no submissions.
The respondent presently represents herself in these proceedings. She seeks the order so that she might be provided with a lawyer, under the scheme established by the Commonwealth Attorney-General for the purposes of Div. 3, Part XI of the Act, who could conduct cross-examination of the applicant, her ex-partner, rather than undertake that task herself.
As discussed by Gill J in Owen and Owen (2020) 60 Fam LR 334 at [3] – [9] and [18], there are two preconditions for the engagement of s 102NA(2) of the Act, whether that engagement comes about by force of s 102NA(1)(c)(i) – (iii) or by an order of a Court made pursuant to s 102NA(1)(c)(iv) of the Act.
Here, those two preconditions are satisfied. First, the respondent, quite reasonably having regard to her evidence and the nature of the case, says that she intends to cross-examine the applicant. Second, she alleges that there was family violence between her and the applicant during their relationship. Although the applicant’s submissions make the point that her evidence about the violence is general and not well particularised, the allegation is nonetheless made. It is the allegation that is important, not the truth of it or the prospect of it being proved at trial: Owen at [9]. This point, however, is not irrelevant to the exercise of the discretion I am asked to consider.
The making of an order pursuant to s 102NA(1)(c)(iv) is discretionary. Thus, in a case where s 102NA(2) is engaged because one or more of the other provisions of s 102NA(1)(c) are satisfied, there will be no occasion for the exercise of the s 102NA(1)(c)(iv) discretion. If any of ss 102NA(1)(c)(i), (ii) or (iii) are met s 102NA(2) will apply to the cross-examination without any order to that effect. An order under s 102NA(1)(c)(iv) will be unnecessary and of no utility. It is difficult to see why a court should or would make an order under s 102NA(1)(c)(iv), when s 102NA(2) is already engaged because one of the matters set out in s 102NA(1)(c)(i) – (iii) applies.
Section 102NA(1) and the provisions of the Family Law Act 1975 (Cth) more generally provide no guidance for the exercise of the discretion provided by s 102NA(1)(c)(iv). The discretion is unfettered but, no doubt, must be exercised judicially. That requires the identification of the factors relevant to the exercise of the discretion in each particular case and a weighing of those factors to arrive at a conclusion. There is nothing in the text of the relevant provisions that suggests that a favourable exercise of the discretion is available just for the asking. To take such an approach would be to subvert the clear legislative intention that absent satisfaction of one of ss 102NA(1)(c)(i) – (iii), there is no automatic prohibition upon cross-examination.
One matter that will always be relevant is the purpose of the legislation conferring the discretion in the context in which it appears in the Act. In Hurley and Melton (No. 2) (2020) 61 Fam LR 405 Hogan J recorded that the purpose of ss 102NA and 102NB of the Act, as gleaned from the Explanatory Memorandum to the Bill which introduced those sections, was to address, inter alia, problems of re-traumatisation and the power imbalance created by family violence. Her Honour continued at [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.
Indeed, in Owen, Gill J had identified the same legislative purpose. His Honour said:
[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.
[30]In accordance with the Explanatory Memorandum and the Senate Committee’s expressed concerns, a scheme was provided to fund the representation of those the subject of a ban on personal cross-examination under the enactment.
[31]It may then be observed that the legislative context is of a funded scheme so that people who cannot cross-examine by virtue of the legislation, whether they be an alleged perpetrator or victim, are not denied a fair hearing where they otherwise could not retain legal representation.
[32]The mischief/purpose and context of the enactment, as identified above assist in identifying relevant considerations. It should not, however, be thought that they provide a code or exhaustive list of considerations where the legislature has chosen not to provide such within the enactment.
In her affidavit filed on 7 December, 2021 the respondent swears that she does not think she can personally conduct a hearing if she must cross-examine the applicant given her experiences of him. It is her belief that it would “assist the Court if [her] legal representation could be sanctioned by the Court.” A conclusion about whether this statement can be accepted at face value must be reached after a consideration of the family violence that is alleged to have occurred.
The nature and extent of any admitted or conceded family violence between the parties to the proceedings will be relevant. The relevance is obvious. Where there has been a temporary order made by a state court under one of the various pieces of domestic violence legislation that now exist throughout this country, or there has been a final order made in the past that no longer applies to the parties, the nature of such order and the basis upon which it was made will likely be relevant. An order made after a contested hearing with findings of fact made to support the order will be of considerable significance. So too, will a consent order which is made upon the basis of concessions by a respondent that acts of family violence had occurred. An order which is made on a “without admissions” basis may not carry as much weight.
It is not suggested in the present case that there have ever been any relevant orders made by state court between these parties. The allegations made by the respondent which might be said to amount to allegations of family violence are denied by the applicant. There are no admissions or relevant concessions by him.
The nature and extent of the allegations of family violence will be plainly relevant. Allegations which are weak or insubstantial will not weigh heavily in favour of an exercise of the discretion. Allegations which are no more than generalised assertions, bereft of any particularity, will not weigh heavily in the exercise of the relevant discretion.
Here, the respondent’s allegations of family violence seem to centre upon allegations of controlling behaviour and possessiveness by the applicant towards her. There may also be allegations that she was physically or perhaps sexually harmed by the applicant although she does not make that allegation in her sworn material filed in accordance with the direction made on 25 November, 2021.
She alleges that at one point following separation she discovered that “my personal accounts and loan accounts were unable to be accessed due to [the applicant] contacting the bank”. She relies upon an email from her bank to that effect. However, the email makes it clear that it was the bank’s action which prevented her from accessing her accounts. The email makes it plain that the bank was notified of a dispute but it does not suggest that the respondent’s access to her accounts was stopped at the applicant’s behest. The email reads, “Your security is important to us – so to protect you and your money, we have stopped the limited access to any personal accounts that may be impacted by the dispute until it can be resolved.” The respondent gives no evidence that there was in fact no dispute between her and the applicant about those accounts or the money in them. In any event, the applicant explains the circumstances by which he came to contact the relevant bank about the accounts in his affidavit filed on 16 November, 2020.
The respondent relies upon determinations made by other bodies about her entitlement to various services to establish, presumably, that her allegations about family violence are true. The first (annexure MH-1 to the respondent’s affidavit) is a notice of decision made under the Victims Rights and Support Act 2013 (NSW) on 4 August, 2020. It opens with the sentence “Previously it has been established that the respondent was the victim of an act of violence for the purpose of approving financial assistance for immediate needs”. There are no particulars of that act of violence nor is there any reference in the material relied upon by the respondent to the acts said to constitute the violence. Later in the same decision, the decision-maker records that in her application the respondent disclosed “the occurrence of a series of sexual assaults upon her perpetrated by the alleged offender”. Presumably the alleged offender is asserted to be the applicant in this case although that is not at all clear. There is nothing in the material to suggest that if the applicant is alleged to be the offender, he was given any opportunity to participate in the proceedings leading to the decision and contradict any allegations made against him.
The second annexure to the respondent’s affidavit is a notice of decision under the Victims Rights and Support Act made on 21 October, 2019. In that decision there is reference to the respondent’s former partner who I assume to be the applicant in these proceedings. The decision records that in her application form the respondent describes the “act of violence” as follows:
Ongoing emotional, psychological abuse, coercive control (monitoring/stalking/harassment”, verbal abuse, financial control/abuse, sexual violence (sexual harassment in front of our children, regular sexual abuse and rape”, escalating physical violence and threats. Sexualised behaviour in front of and towards our daughters (ages 7 & 9) and threats towards me if I disclose this.
Later in the same notice of decision, the decision-maker records having considered police reports. There is no evidence before me that that the police recorded any complaints of sexual abuse and rape by the applicant towards the respondent. The decision record reported that the violence included verbal abuse, intimidation and inappropriate sexual behaviour towards the parties’ two daughters.
The balance of the annexures to the respondent’s affidavit filed in accordance with the directions made on 25 November, 2021 are to the same effect. They are a series of notices of decision made under the Victims Rights and Support Act. None of those documents establish that the respondent was subjected to any family violence for the purposes of the Family Law Act. Nor do they give any information as to the basis upon which it might be concluded that she was the victim of family violence for the purposes of the Family Law Act. At best, those annexures establish that, seemingly without reference to the applicant in this case, another decision-maker determined that the respondent met the requirements of the Victims Rights and Support Act for some form of payment or compensation. The acts said to give rise to that entitlement to payment or compensation are specified nowhere in the material before me except in the most general of terms.
Annexure MH–8 to the respondent’s affidavit is a letter from Dr B who is described as a mental health social worker and family therapist. The respondent has apparently consulted with Dr B. In her letter she sets out that she asked the respondent to complete a “standardised trauma screener” when she first consulted with the respondent. She sets out in her letter:
Since completing this measure [the respondent] has attended counselling and describes numerous incidences (sic) that have impacted on her adversely during the course of her relationship with her ex-partner and the father of the children. She has discussed her primary concerns which is safeguarding the emotional and psychological safety and recovery of herself and her children. She has discussed additional stresses that have arisen due to the extended litigation that is punctuated the last 2 ½ years.
[The respondent] has described in detail, a significant history of being victimized (sic) in this relationship with a former partner, and these experiences are reflected in a clinically significant reporting of traumatic symptoms. [The respondent] describes an extensive history of being financially, sexually and emotionally abused. She has also discussed her concerns about the psychological recovery of the children given their exposure (sic to) the psychological and emotional abuse of their father.”
Sadly, none of the “numerous incidences” referred to by Dr B or the “significant history” of acts said to amount to victimisation between the applicant and the respondent are set out in any of the material before me.
In her affidavit filed in accordance with the direction of 25 November, 2021 the respondent refers to statements that she made to the authors of two family reports, one prepared on 5 November, 2019 and the second prepared on 23 November, 2020. As to the first family report, the respondent told the family consultant (at [8]) that she felt scared of the applicant “alleging that he yelled at her and pushed her, and that the father was controlling during the relationship”. The report records that the allegations were denied by the applicant.
To put the allegation that the applicant had “pushed” the respondent in context, it is necessary to refer to the second family report. In that report, the family consultant records at [15] that when the respondent was asked to recall the worst incident of family violence and abuse she said that the applicant “angrily threw a pillow at her when she got upset he had rolled onto” one of the children in bed. On her own statements to the family consultant, that was the worst incident. There was no mention of any form of sexual abuse or misconduct, let alone rape, as the respondent seems to have alleged at some point. The highest the evidence she points to in the family report rises is a record in the first family report at [69] where the report writer records the respondent’s allegation that the applicant touched “her vagina, anus and breasts without consent”. She told the report writer that she “advised him to stop”. There is nothing to suggest in what the respondent said to the family report writer, that he did not stop when the respondent told him to stop.
In addition to the above material, the respondent refers to her affidavit filed on 16 November, 2020. That affidavit contains the same generalised allegations of coercive and controlling behaviour. The respondent specifically identifies paragraphs 18, 38, 40 and 42 of that affidavit as giving specific examples of “Sexual Assault” by the applicant. What she describes in paragraph 18 consists of consensual sexual interaction between both parties and the cessation of that interaction by the applicant when the respondent asked him to cease. Given that the interaction up to that point was consensual, it could hardly be said to be sexual assault. However, what the respondent describes in paragraph 38, 40 and 42 of that affidavit, if it is further particularised and proved, might amount to family violence for the purposes of the Family Law Act. Those matters, if proved, perhaps provide a basis for the respondent’s assertions that she felt coerced and controlled by the applicant during the course of their relationship.
She also directs my attention to an affidavit deposed by her sister who gives evidence of her observations of the applicant’s conduct towards the respondent on a particular occasion.
The respondent’s evidence in her affidavit of 16 November, 2020 and that of her sister to which I have referred above arguably records sexual misconduct by the applicant towards the respondent. I accept that given the nature of the allegations and the nature of the acts alleged by the respondent against the applicant, the acts, if proved, would probably demonstrate family violence between the parties for the purposes of the Act. I accept that the respondent may have difficulty cross-examining about those matters given their intimate nature. I am satisfied that there is a potential that the integrity of the evidence in the proceedings may be compromised by requiring the respondent to cross-examine the applicant in a context of what may well be a power imbalance between them.
I am satisfied that I ought to exercise the discretion provided by s 102NA(1)(c)(iv) and make an order that the provisions of s 102NA(2) apply to these proceedings.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 February 2022
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