Mee & Tomkins
[2022] FedCFamC2F 1129
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mee & Tomkins [2022] FedCFamC2F 1129
File number(s): NCC 2384 of 2018 Judgment of: JUDGE McGINN Date of judgment: 23 August 2022 Catchwords: FAMILY LAW – 102NA Application – all three factors present – concessions in child impact report – subsequent hearing – application granted Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Division: Division 2 Family Law Number of paragraphs: 37 Date of last submission/s: 23 August 2022 Date of hearing: 23 August 2022 Place: Adelaide The Applicant: Ms Mee The Respondent: Mr Tomkins ORDERS
NCC 2384 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MEE
Applicant
AND: MR TOMKINS
Respondent
order made by:
JUDGE McGINN
DATE OF ORDER:
23 August 2022
IT IS ORDERED:
1.That these are proceedings to which s 102NA of the Family Law Act 1975 (Cth) apply and pursuant to ss 102NA(1)(c)(iii) of the Family Law Act 1975 (Cth).
2.That the Applicant mother and the Respondent father in respect of the pending Application- Contravention each make application to the Legal Aid New South Wales for funding for purposes for representation under the scheme for funding that is in place in relation to matters to be dealt with pursuant to s 102NA.
3.That the Applicant mother and Respondent father are directed to :-
(a)notify in writing the other party of having made application for funding referred to in the previous order; and
(b)notify in writing the other parties of the outcome of any such funding.
4.That there be liberty to apply to relist for further direction in the event that the application for funding pursuant to paragraph 2 is declined in writing by the Legal Aid of New South Wales by way of written request by email to Associate.Judge[email protected]
5.That the hearing of the Application for Contravention filed/sealed 3 February 2022 otherwise listed for hearing and determination on 1 September 2022 at 9.30am (South Australian time) shall be listed for mention only on that date for the allocation of an alternative hearing date to be determined in the light of any response that the parties may have received in respect of their applications for funding pursuant to section 102NA.
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 a pseudonym Mee & Tomkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
On the afternoon of Thursday, 4 August 2022 the applicant mother filed an Application in a Proceeding, seeking an order for legal representation under section 102NA of the Family Law Act1975 (Cth) (“the Act”).
The specific order sought is pursuant to section 102NA(1)(c)(iv) of the Act. The requirements of section 102NA are to apply to the cross-examination at the contravention hearing and the parties are prohibited from personally cross-examining each other at the hearing. The application is supported by an affidavit of the applicant mother of 4 August 2022. The application is brought following orders being made on 14 July 2022.
The mother’s application for contravention filed 3 July 2022 was to be listed for hearing and determination on 1 September 2022 at 10.00am.
In making orders on 14 July 2022 it was noted that the Court had referred each of the parties to section 102NA of the Act and that the application pursuant to that section was to be provided by way of email to my associate.
Instead the Application in a Proceeding referred to above has been filed.
The applicant mother is the applicant in the Application – Contravention which has been listed for hearing and determination on 1 September 2022 at 10.00am.
That application records 10 counts of breaches of parenting orders made with the consent of the parties and that is the order.
It was made with the consent of the parties on 27 November 2018.
The Application – Contravention was prepared and filed by the applicant mother on her own behalf. That application has come before the Court on 3 June 2022 when there was a hearing before a Senior Judicial Registrar and before me on 14 July 2022.
On each occasion the parties to the application have appeared on their own behalf.
On 3 June 2022 it was noted before the Court the parties, being unrepresented, were encouraged to obtain legal advice. It is unclear whether they have done so but no Notice of Address for Service has been filed by a legal representative on behalf of either party. The Court therefore presumes that each of the parties remain self-represented. Order 5 of the orders made on 14 July 2022 provided:
That in the event that either party comes to the view that section 102NA of the Family Law Act is applicable to the hearing on 1 September 2022 then in such event the party which considers section 102NA applies shall notify both the Associate to Judge McGinn and the other party in writing of that view.
The affidavit in support of the Application in a Proceeding of the applicant mother does not disclose as to whether the respondent father has been advised of the applicant mother’s view that an order pursuant to section 102NA is required.
Section 102NA which is designed for the purpose of relieving anxiety experienced by victims of family violence, having to directly confront an abuser in Court, requires certain criteria be satisfied.
Firstly, the Court must be satisfied that an examining party intends to cross-examine a witness party. There is no evidence in the supporting affidavit that refers to this criteria but the Court presumes that, given that the application for contravention is contested, that it is likely and that such intention is present in each of the parties.
Secondly 102NA requires that in proceedings under the Act, that there is an allegation of family violence between the examining party and the witness party.
The affidavit in support of the application, whilst making reference to allegations of family violence and instances of family violence as between the applicant mother and the respondent father, does not disclose where such allegations have been made in the proceedings under the Act.
The term “proceedings” pursuant to section 4 of the Act:
means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.
Proceedings have been on foot between these parties since 6 August 2018, prior to the filing of Application - Contravention on 3 February 2022.
The proceedings commenced on 6 August 2018 had previously been concluded by the consent orders referred to earlier.
The language of section 102NA(1)(b) uses the present tense in the form of “is” as to the existence of an allegation of family violence between the relevant parties in the proceedings. The legislation does not use the past tense or make reference to the past tense by the use of the word “was”.
There are such allegations in the present proceedings.
The affidavit of the applicant mother sworn or affirmed (it is not made clear which) on 28 January 2022 makes reference at paragraph 9 to an “ADVO” that had been made between the applicant mother and the respondent father. The affidavit has annexed to it the applicant mother’s application for an extension of the ADVO. The annexure to the affidavit of the applicant mother contains a further statement which was prepared by the applicant mother for the purposes of extending the ADVO for a period of 12 months. It appears that an original ADVO was made on 26 June 2018 and ran for a period of 12 months from that date. That order then appears to have been extended, according to the applicant mother’s affidavit filed in support of the Application - Contravention, for a further 12 months, meaning that the order was extended to 26 June 2020.
It is a further requirement of section 102NA of the Act, at subparagraph (1)(c) that in addition to the presence of an intention to cross-examination and an allegation of family violence there must also be any or some of the following present:
(i)a conviction or charge with an offence involving violence or a threat of violence to the other party;
(ii)a family violence order other than an interim order that applies to both parties;
(iii)an injunction under section 68B or 114 of the Act for the personal protection of the party directed against the other party;
(iv)or that the Court is satisfied that it should order that the requirements precluding cross-examination between the parties is to apply to the cross-examination.
The affidavit in support does not disclose any evidence of conviction or charge. The evidence does not disclose that there is currently a family violence order that applies both at the present to both of the parties. There is no evidence in the supporting affidavit that an injunction of the requisite type exists for the personal protection of either party.
In effect, the supporting affidavit invites the Court to exercise its discretion to order the cross-examination by the respondent father should not take place personally but must be conducted by a legal practitioner, and similarly in relation to the mother of the father, because the mother states:
(a)that she has been the victim of physical, verbal, and psychological domestic violence during her relationship with the applicant father;
(b)that there was an ADVO between the parties that was extant between 2018 and June 2020;
(c)that each of the parties claim that they are victims of domestic violence at the hands of the other; and
(d)that the applicant mother is “concerned” about cross-examination because she alleges that the respondent father communicates in a controlling, blaming, belittling, and a name-calling manner – either the respondent mother would be “triggered” by the respondent father’s “manners” (presumably his manner of questioning), and the respondent mother remembering and reliving many traumatising events, as well as being unfairly disadvantaged.
The respondent mother’s affidavit in support of the application for contravention makes reference to:
(a)having been punched in the face by the applicant, causing nerve damage to one of her front teeth and having to receive a root canal treatment;
(b)being the subject of derogatory remarks by the respondent;
(c)being pushed and hit by the respondent and bruised;
(d)being wrapped in a towel and shaken by the respondent;
(e)being shouted at and spat in the face;
(f)having hands placed tightly around her neck until she almost passed out;
(g)being screamed and sworn at; and
(h)referencing events between 5 August 2018 and 16 February 2019 comprising the receipt of threatening and unwanted text messages and phone calls and verbal abuse.
The Court is conscious that in determining whether to make an order pursuant to section 102NA(1)(c)(iv) the Court should not simply do so to permit a litigant to obtain legal aid not otherwise available, but rather to alleviate the anxiety experienced by victims of family violence.
The Court is also conscious that it has other powers available to it pursuant to section 102NB that it can put in place appropriate protections for a party who was the alleged victim of family violence for the purpose of cross-examination, and that the Court retains a power to control cross-examination so as to preclude improper behavioural questioning under provisions of the Evidence Act 1995 so as to control the questioning of witnesses and preclusion of improper questions in addition to those powers under the Act regarding limiting or disallowance of cross-examination.
The Court in assessing this application cannot overlook the affirmation contained in an earlier impact report of 25 May 2022 prepared pursuant to orders of 25 March 2022 that in relation to the mother’s information about family violence, the father was noted to have admitted some of his behaviour, being a reference to circumstances where the father informed the family consultant that he had “lost control” and that he had hit the mother in the mouth and pushed her head into a pillow.
The making of an order pursuant to section 102NA of the Act in the circumstances of this matter is not without consequence.
The making of an order and the subsequent necessity for an application to be made to Legal Aid and for that application to proceed is likely to delay the hearing and determination of the Application - Contravention filed 3 February 2022 and listed for hearing and determination on 1 September 2022 at 10.00am South Australian time.
Bringing into account all of the matters referred to above, including the question of the likely delay of the applicant mother’s Application - Contravention and bearing in mind that the application for an order pursuant to section 102NA has been brought by the mother, I consider it is appropriate for such an order pursuant to section 102NA to be made in the circumstances of this matter.
In the circumstances of this matter, it is regrettable that the question of the consideration of section 102NA and its applicability to the circumstances of this matter was not encouraged or promoted prior to this matter having been listed for determination of the Application - Contravention.
I will therefore make orders pursuant to section 102NA.
I will also make orders that the Application - Contravention which is listed for hearing and determination on 1 September 2022 will now be listed only for mention on that date of 1 September 2022 and will not proceed to hearing and determination on that day, so as to permit sufficient time for the application to be made to the relevant Legal Services Commission for funding pursuant to section 102NA of the Act.
In all of the circumstances, I consider that an order should be made pursuant to section 102NA(1)(c)(iv) of the Family Law Act.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 23 August 2022
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