MASON and ABEBE
[2022] FCWA 8
•13 JANUARY 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MASON and ABEBE [2022] FCWA 8
CORAM: TYSON J
HEARD: 13 JANUARY 2022
DELIVERED : Ex tempore
FILE NO/S: [Redacted]
BETWEEN: MR MASON
Applicant
AND
MS ABEBE
Respondent
Catchwords:
PRACTICE AND PROCEDURE – Application for discretionary ban on personal cross-examination – Case turn on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Tysoe |
| Respondent | : | Ms Watson |
| Independent Children's Lawyer | : | Ms Davidson |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Baily Family Law |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Danniell & Mounce [2021] FamCA 594
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mason and Abebe has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
TYSON J:
1These proceedings concern the child, [Child A], born [in] 2019, who will shortly be three years old. The applicant father, [Mr Mason], and the respondent mother, [Ms Abebe], are unable to agree on the parenting arrangements that are in the best interests of Child A. An Independent Children’s Lawyer has been appointed for Child A, given the competing risk allegations raised by each parent.
2Before the Court is the application made by the mother, in which she seeks the Court make orders pursuant to s 219AK of the Family Court Act 1997 (WA) (“the Act”), which would provide that neither party is permitted to cross-examine the other party personally. The mother is currently legally represented. The father is now also legally represented.
3The proceedings are currently listed in the Call-Over [in] January 2022, for the allocation of a trial date, with an estimated hearing time of four days.
4All parties, including the ICL, acknowledged if the cross-examination ban order was made, the matter could still proceed in the Call-Over on the basis the father’s solicitor is on the panel.
5From a review of the parties’ respective trial material, it appears they remain polarised in their proposals for Child A. The mother’s minute of orders sought at trial[1] seeks Child A live with her, she have sole parental responsibility, and injunctions be granted restraining the father from approaching her or Child A’s home, workplace, school or day care. She makes no proposals for Child A to spend any time with the father, but seeks “[o]nly in the event the Court considers it is in [Child A’s] continued best interests to do so”, then there be indirect contact only, through the provision of cards, letters, school reports and photographs.
[1] Filed 16 September 2021.
6In contrast, it appears the father seeks[2] an order for the parents to have equal shared parental responsibility, for Child A to live with the mother and to spend unsupervised time with him, extending to include on an overnight and extended basis.
[2] Minute of proposed orders filed 16 September 2021.
7Upon review of the respective trial material, together with the report of the Single Expert Witness, [Dr A], it would appear the main issue for determination is whether the father presents some form of risk of harm to Child A, as a consequence of his mental health. However, the mother also raises allegations as to family violence.
WHAT IS THE POSITION OF THE FATHER AND ICL?
8The father and the ICL have both indicated they consent to the proposed order.
THE LAW
9Section 219AK of the Act provides:
219AK Mandatory protections for parties in certain cases
(1)The requirements of subsection (2) apply if, in proceedings under this Act ––
(a)a party (the examining party) intends to cross-examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)any of the following are satisfied ––
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 235 or 235A for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
(2)Both of the following requirements apply to the cross-examination:
(a)the examining party must not cross-examine the witness party personally;
(b)the cross-examination must be conducted by an Australian legal practitioner acting on behalf of the examining party.
10Section 219AK(2) of the Act prohibits personal cross-examination by a party (the examining party) of another party (the witness party) and provides that such cross-examination must be conducted by a legal practitioner acting on behalf of the examining party in certain circumstances.
11Those circumstances are set out at sub-s (1). The requirements of sub-s (1)(a) and (b), namely that there is an intention to cross-examine and there is an allegation of violence between the examining party and the witness party, must be satisfied.
12In addition to those requirements, if the Court is satisfied as to any of the criteria set out in sub-s (1)(c)(i)–(iii), the imposition of the cross-examination ban is mandatory ("mandatory ban"). If none of the criteria set out in sub-s (1)(c)(i)–(iii) are met, the Court may nevertheless order that the requirements of sub-s (2) are to apply to the cross-examination ("discretionary ban").
13None of the criteria in sub-s (1)(c)(i)–(iii) are satisfied. Neither party has been convicted of, or is charged with, an offence involving violence or a threat of violence to the other party. A family violence order does not apply to the parties. There is not an injunction for the personal protection of a party directed against the other party. Consequently, a mandatory ban is not applicable.
14I now turn to consider the discretionary application of the section. In Danniell & Mounce [2021] FamCA 594, Altobelli J summarised a number of first instance decisions in which the Court had considered whether to make an order for a discretionary ban, pursuant to the equivalent provision in the Family Law Act 1975 (Cth), namely, s 102NA(1)(c)(iv). His Honour wrote as follows:
8.In Owen & Owen [2020] FamCA 90 Gill J stated at [9] that:
It should be observed that what is required is not the proof of family violence, but rather the allegation of family violence. It should also be recognised that the allegation must relate to family violence between one party and the other, rather than against another family member. The provision does not distinguish between which party is the alleged perpetrator and which is the alleged victim.
9.At [21] – [32] Gill J considers the discretion pursuant to s 102NA(1)(c)(iv), and having regard to the relevant Explanatory Memorandum, concludes at [29]:
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.
10.In Delancy & Theobald [2019] FCCA 3852 at [7] – [12], I stated:
7.The court clearly has a discretion. Should it exercise its discretion in the mother’s favour in the circumstances where the allegations seem to be poorly particularised, and in any event, are historical? Should the discretion be exercised in the mother’s favour in circumstances where one would have thought that the main issue in this case was not so much the family violence allegations, but the question of the risk of harm presented to a child as a result of the mother’s drug abuse or alleged drug abuse? It could be said by some, for example, that this is not a family violence case, it is a drug case. Why, then, should the mother receive the benefits of a series of protections that were enacted as a result of concerns over family violence?
8.The legislation is unclear about these issues and is relatively untested. Reference to the Explanatory Memorandum does provide some assistance in understanding the rationale of these amendments.
9.For example, [p]aragraph (4) of the Explanatory Memorandum provides some assistance and enables the court to conclude that the rationale of these amendments includes avoiding and/or minimising the risk of re-traumatisation for victims of alleged family violence and to seek to mitigate the power imbalances potentially created when an alleged victim is put in a situation where she, in this case, must personally cross-examine the alleged perpetrator. That is the underlying rationale.
4.The issue of personal cross-examination of victims by their alleged perpetrator is in family law matters is an issue of community concern. Personal cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a legal representative. 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.
10.The amendments apply to both Final and Interim Hearings. The trigger seems to be the fact of cross-examination. I acknowledge that cross-examination could be allowed in interim proceedings, but the fact is that the legislation makes no differentiation between Final and Interim Hearings.
11.It is interesting that the legislation is silent on issues such as the antiquity of family violence allegations. For example, [in] s 102NA(1)(b) [of] the Act, it [does not] say, for example “recent” allegation of family violence it simply says there is an allegation of family violence, and, indeed, the rationale for that may well be that even past alleged instances of family violence are productive of the risk of re-traumatisation and the power imbalances which are the underlying rationale of the amendments in question.
12.This discussion of the focus of these amendments is based on what can only be described as a limited consideration of the legislation, and in the context of little guidance from other cases. The rationale seems to be to focus on the dynamics of re-traumatisation and power imbalances. Thus, it does not need to be a family violence case. It can be a property case and it certainly would cover a case such as this one where the main issue might otherwise be the question of the risk of harm to a child from the mother’s drug dependence or drug abuse, but where the underlying dynamic is alleged to be family violence.
15I respectfully agree with and endorse His Honour’s remarks.
DISCUSSION AND CONCLUSION
16The mother, in her affidavit filed in support of her application, details at some length her allegations of family violence which she says were perpetrated by the father towards her. Those allegations include allegations of verbal and emotional abuse during the relationship,[3] and allegations of physical abuse both during the relationship, at separation, and since.[4]
[3] See paragraphs 4 to 9 inclusive
[4] See paragraphs 10 to 40 inclusive.
17The mother has deposed to occasions in which she says the father was physically violent and aggressive towards her, including in the presence of Child A. She alleges the father has threatened self-harm, such as holding a knife to his skin and saying, “I don’t want to be part of this world” and punching himself in the head.
18The mother records the police attending their home in [early] 2018, following a complaint. The mother has otherwise detailed her accessing domestic violence support and assistance and the fact the parties were not assessed as suitable for family dispute resolution, which on her case, followed her disclosures about the allegations of family violence.
19The father denies the mother’s allegations in his trial affidavit.[5] It is his case that the mother has behaved in an aggressive, intimidating and, in fact, violent manner towards him. He denies physically assaulting the mother.
[5] See paragraphs 20 to 64 inclusive.
20He does, however, acknowledge:
(a)having grabbed the mother’s backpack, to plead with her not to say, and that a neighbour considered he was attacking her, which he denies;[6]
(b)sending text messages as reported for which he expresses remorse;[7]
(c)to the parties having argued and shouted, but he denies calling the mother the derogatory terms as she claims;
(d)putting his hand over the mother’s mouth, while she was screaming;[8] and
(e)having self-harmed, only when he says he became “frustrated and punch (sic) myself during arguments … [o]ut of helplessness”.[9] He denied the allegation of holding a knife and making the comments claimed by the mother.
[6] See paragraph 24 of the father’s trial affidavit.
[7] See paragraph 29 of the father’s trial affidavit.
[8] See paragraph 43 of the father’s trial affidavit.
[9] See paragraph 95 of the father’s trial affidavit.
21As indicated, there is a Single Expert Witness, Dr A, who has provided a report dated 15 January 2021. Dr A considered the mother presented as someone with intense emotionality on certain issues. He described the father as highly intelligent, unusual and with a presentation indicative of personality type disturbance.
22Dr A reported the allegations of family violence, including the incidents involving the police, and concluded it was difficult to determine the exact extent of any violence. However, he was satisfied the relationship, towards the end, was escalating out of control.
23Dr A considered the mother overestimated the risks posed by the father, that she held a negative view of him and that she did not feel safe around him. Dr A considered the maternal grandmother’s intensely negative view of the father was likely to be fuelling and exacerbating the mother’s sense of insecurity. He recommended the mother receive individual therapy to address emotional issues and past trauma.
24There are disputed allegations of family violence. The mother has some vulnerabilities and sensitivities, as identified by the Single Expert, which leads me to conclude there is a risk that personal cross-examination of the mother by the father could expose her to trauma and may impact her evidence. The cross-examination of the mother should be conducted by a legal representative on behalf of the father. This recognises the need to protect the mother, with the need for procedural fairness of the parties.
25I also note in the circumstances, I am still satisfied it is an appropriate exercise of my discretion, notwithstanding the father has indicated he intends to have legal representation. In my view, the circumstances warrant the granting of the discretion, and in the circumstances, there would appear to be no prejudice to the father given the advice his solicitor is part of the cross-examination panel.
26In the circumstances of these parties, I have concluded I should exercise my discretion and intend to make orders in accordance with the minute, as agreed.
THE ORDERS
AND upon the Court noting that one or both parties have indicated an intention to cross-examine the other at the trial of the proceedings, and that there are allegations of family violence between them:
AND further noting that the parties have each been notified by the Court:
(a)that pursuant to the following order, neither party is permitted to cross-examine the other party personally;
(b)that pursuant to the said order, any cross-examination of either party must only be conducted by a legal practitioner acting on behalf of the other party;
(c)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;
(d)that a copy of these orders will be provided by the Court to Legal Aid Western Australia, which administers the said scheme; and
(e)that Legal Aid Western Australia will be advised that the Applicant and Respondent are currently not represented by a legal practitioner/s.
IT IS ORDERED THAT:
The requirements of s 219AK of the Family Court Act 1997 (WA) will apply to any cross-examination occurring in the proceedings.
1.The Caseflow Manager forthwith cause a copy of this order to be forwarded to the Applicant and Respondent.
2.The Caseflow Manager forthwith cause a copy of this order to be forwarded to Legal Aid Western Australia.
3.The Form 2 be and is hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
19 JANUARY 2022
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