Moxey & Keirn
[2023] FedCFamC1F 982
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moxey & Keirn [2023] FedCFamC1F 982
File number: SYC 6197 of 2019 Judgment of: CAMPTON J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for s 102NA order – where the mandatory provisions of the section do not apply – where the parties have been in all but continuing litigation as to parenting since 2015 – where the wife alleges that she has been subject to family violence by the husband – where the alleged incident of family violence by the wife occurred six years ago – where there is no evidence relied upon for the purposes of the application as to any subsequent event – where the wife gives no primary evidence as to the alleged incident in her affidavit in support of the application – where each party makes allegations historically as to risk of family violence – where no evidence was relied upon for any family violence subsequent to that incident – where neither party throughout the history of the litigation has been apprehensive in engaging with each other – application dismissed. Legislation: Family Law Act 1975 (Cth) ss 69ZP, 69ZQ and 102NA
Victims Rights and Support Act 2013 (NSW)
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 16 November 2023 Place: Sydney Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates ORDERS
SYC 6197 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MOXEY
Applicant
AND: MR KEIRN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed 9 November 2023 is dismissed.
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 Moxey & Kiern has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the Application in a Proceeding of the mother filed 9 November 2023 seeking an order pursuant to s 102NA of the Family Law Act (1975) (Cth) (“the Act”). The father opposes the relief of the mother. The Independent Children’s Lawyer (“ICL”) appropriately, neither supported nor opposed the application, indicating that there was “some merit” in the order as sought by the mother.
For the reasons that follow, the mother’s Application in a Proceeding is dismissed.
History of the litigation
The parents commenced cohabitation in or around mid-2006 and were married in 2006. They separated and remained living under the one roof in or around November 2014. Final separation occurred on 5 January 2015.
The parents have been in all but constant litigation as to the parenting of B born 2010 and C born 2013 (“ collectively “the children”) since the separation.
Final orders as to parenting and property settlement were made by Rees J on 12 July 2017. Dr N was the single parenting expert witness for the purposes of that proceeding.
The current round of litigation was initiated by the mother in the Federal Circuit Court (as it was then) on 4 October 2019. The current proceeding was transferred to the Federal Circuit Court to the Family Court (as it was then) on 11 December 2019.
During the eight-year tortious history of parenting disputes, the parties have consumed not less than five interim hearing events and a defended final hearing. The current proceeding has been the subject of not less than 20 separate listing events since late 2019, including three during 2023 before me by way of management of the litigation prior to this hearing.
The order for family therapy made 8 November 2021 failed. The Legal Aid mediation procedure foreshadowed by way of orders made by a Senior Judicial Registrar on 20 May 2022 has not achieved a compromise of this chronic litigation.
Each party makes allegations historically as to risk, including family violence occasioned between the parents and occasioned by the mother upon the children, and as to the other posing psychological and emotional risks to the children. The children have had extensive contact with a number of state welfare authorities, including but not limited to the police and the Department of Communities and Justice. The current continuing issues as to risk are as to contentions of the mother’s abuse of alcohol, a dysfunctional parental relationship and entrenched high conflict.
A single expert report was prepared by Dr LL, a Clinician. It was released on 14 November 2022. Dr MM, the single parenting expert, is preparing a report that is anticipated to be released at the beginning of December 2023.
The current orders regulating the parenting of the children were made on 11 March 2022, providing for the children to live with the father and to spend supervised time with the mother. Those orders were confirmed by way of a defended hearing before a Senior Judicial Registrar on 20 May 2022.
Unsurprisingly, the parents expressed markedly differing contentions as to the current time spent by the children with the mother. The father advised during this hearing that the children together generally spend overnight time with the mother for one or two nights each week, one night usually being from 4.00 pm on Saturdays until 5.00 pm or 6.00 pm on Sundays and occasionally once overnight during the week. This continues during both the school term and during school holidays. The mother said that since April 2023 the children had spent on average five nights each fortnight in her care, being for at least three consecutive overnight periods on alternate weekends and on each Wednesday night. The ICL understood, not inconsistent with that said by the father, that the children generally spent two to three overnight occasions each fortnight with the mother.
Before me on 23 March 2023 each party and the ICL sought the allocation of urgent trial dates. It was noted that the mandatory provisions of s 102NA of the Act did not apply. No application was made by the mother, who had solicitors appearing for her at that time, pursuant to s 102NA(3) of the Act, in circumstances where the father appeared without legal representation and would personally cross examine the mother. By way of those orders the parties have been placed on notice as to the discretion of the Court to decide pursuant to ss 69ZP and 69ZQ of the Act as to which of the issues in the proceedings require full investigation at trial process, and which may be disposed of summarily. This remains the case for the upcoming trial.
On 30 October 2023 orders were made listing the proceeding for trial over three days in the Sydney Rolling List commencing on 11 March 2024. Directions provide for the parties to file their affidavits on or before 17 January 2024. As part of that listing, when making of the trial directions, the parties and the ICL agreed that none of the mandatory provisions of s 102NA(1) of the Act were engaged.
The mother, by way of her Amended Initiating Application filed 31 March 2023, as prepared by her then solicitors, seeks orders that she have sole parental responsibility for the children, that the children gradually increase their overnight time with her starting from four nights per fortnight to eight nights per fortnight during the school term over a relatively short period of time, and then ultimately be return to her full-time care. She proposes that the children spend half of each school holiday period with the father.
The father, by way of his Amended Response to an Initiating Application filed 23 June 2023, seeks that he has sole parental responsibility as to each child’s education and health and that the parties otherwise equal share parental responsibility. He also seeks that the children live with him, for the mother to spend time with B (who will approaching 14 years of age ) in accordance with his wishes, and for the mother to spend time with the child C as agreed between the parties and failing agreement during the school term for one overnight stay mid‑week in week one of a fortnightly cycle, and on alternate weekends from Friday to Sunday in the second week of the cycle, together with half of the school holidays.
By way of their respective currently framed relief as sought, notwithstanding that each party contends that historical unacceptable risks continue to exist, such risks are capable of mitigation by way of appropriate orders.
APPLICABLE LAW
Section 102NA of the Act provides:
102NA Mandatory protections for parties in certain cases
(1) 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 68B or 114 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;
then the requirements of subsection (2) 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 a legal practitioner acting on behalf of the examining party.
Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
DISCUSSION
The affidavit evidence relied upon by the mother in identifies the conviction of the father in the Local Court in Suburb JJ on two criminal charges of common assault upon her in 2018, after an event that occurred between the parties at the father’s residence in late 2017. Her evidence as to this event was by way of 30 pages of Local Court transcript. That transcript was only of the father's cross-examination in the Local Court. She did not give any primary evidence in her affidavit as to the event or her evidence in chief given in the Local Court. The transcript records the father's denial of the mothers' allegations and his contentions as to the mother “assaulting” him when pushing past his to secure the children’s passports. On his version of the event, being that contained in the transcript, the brief exchange in late 2017 was not extraordinary having regard to the blinkered attitudes of the parents, and the engagement of the police was somewhat disproportionate. The reasons for the conviction could be categorised as inadequate. A single final Apprehended Violence Order (“AVO”) was made restricting the father’s behaviour for a period of 12 months was made as to he not assaulting, threatening, harassing or intimidating the mother.
The mother's affidavit in support of the application scantily records the fathers successful appeal and quashing of the criminal convictions in the District Court in early 2019. She does not put into evidence by way of her affidavit, the transcript of the District Court proceeding or the reasons for judgment. The AVO was extended in early 2019 for 12 months. It expired in mid-2020. There is no further evidence relied upon by the mother of any complaint of or as to any further family violence in support of this application.
The mother's affidavit annexes documents pursuant to the Victims Rights and Support Act 2013 (NSW) confirming that she received a payment for her “recovery and healing” of $1500 grounded from acceptance that she was a “victim of domestic violence”, and other documents from 2017 and 2018 recording she receiving counselling funded as a product of that legislation.
Her affidavit identifies she has been a client of KK Counselling team and has participated in 43 counselling sessions over the period from July 2021 to August 2023. The reason for her attendance at that service was in relation to “the breakdown of her relationship and subsequent difficulties with co-parenting due to behaviours that may be described as domestic and family abuse”. No further evidence was adduced as to the content or otherwise of her attendances.
The mother annexed to her affidavit a letter addressed “to whom it may concern” dated late 2023 authored by a “domestic violence and family support worker” at NN Support Services. The specialised knowledge, qualifications, training, and experience of the author are unknown. The basis upon which the opinions expressed are not disclosed in the letter. In the circumstances, this evidence carries little weight.
The mother broadly gives evidence in her affidavit that her self-esteem and confidence has been “rebuilt” since the event of 2017. She thereafter says, absent particularity, that her “ability to ask necessary and relevant questions, and my capacity to present, my case, effectively will be compromised” and that she will “find the prospect of cross-examining the other party very daunting”.
The focus of her application, as recorded in her affidavit, is not that she apprehends any difficulty in cross-examining the father, but that his anticipated cross-examination of her creates apprehension.
The father said that the mother is very well resourced and has the capacity, should she elect to do so, to fund her own legal representation for the purposes of the trial, as she has historically done throughout the course of the prior and current proceedings until recently. It is his contention that the mother is attempting to manipulate the discretion of the court to get “free Legal Aid” for her case.
It was agreed in the hearing before me that in the event the mother achieved her relief sought a mirror order is required as against the mother prohibiting her from cross-examining the father pursuant to the section.
The Act does not require the allegations of family violence to be recent. It does not distinguish between which party is the alleged perpetrator and which is the alleged victim. The purpose of the section is to ensure the protection of alleged victims of family violence from re‑traumatisation due to being cross-examined by the alleged perpetrator. The section also seeks the preservation of the integrity of the evidence in the proceedings by ensuring the alleged victims of family violence can provide evidence in circumstances that promote their ability to give clear and accurate evidence.
The evidence records that each parent contends that they have been the victim of a specified incident of family violence occasioned by the other six years ago. On any view, the context of that event, at its highest, was not in and of itself, absent further evidence, a substantial directed physical exchange by one upon the other. There is no evidence before me for the purposes of this application of any subsequent family violence between the parties.
In all of the circumstances of this case, on the evidence identified, I am not satisfied that the discretion under s 102NA of the Act is engaged and ought to be exercised. I am not satisfied that either parent will be re-traumatised due to being cross-examined by the other arising from the event of family violence identified in the mother's evidence, nor am I satisfied that integrity of the evidence of either party will be compromised or that either parent will not be able to give clear and accurate oral evidence.
This conclusion is buttressed by my careful observation and experience of each of the parents during the case management events during the proceeding. Neither at any time has identified or expressed any apprehension or reticence to directly engage with the other. Each has been blinkered and robust in engaging with the other, often ignoring requests for civility and respect.
The Application in a Proceeding of the mother filed 9 November 2023 will be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 17 November 2023
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