Naisby & Naisby (No 2)
[2024] FedCFamC1F 699
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby (No 2) [2024] FedCFamC1F 699
File number(s): BRC 12442 of 2022 Judgment of: JARRETT J Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for order pursuant to s 102NA(1)(c)(iv) Legislation: Family Law Act 1975 (Cth) ss102NA(1)(a), 102NA(1)(b), 102NA(c)(iv), 102NA(2) 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: 17 Date of hearing: 17 October 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person Solicitor for the independent children’s lawyer: Life Law Solutions ORDERS
BRC 12442 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
17 OCTOBER 2024
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 and the respondent by the applicant 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Naisby & Naisby has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
By her application in a proceeding filed on 11 October 2024, Ms Naisby, the respondent in the principal proceedings, seeks an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to the cross-examination of her by the applicant, Mr Naisby, at the trial of an application for parenting orders presently listed to commence at 10.00am on 7 November 2024. I have, over a number of hearing days in 2023 and one hearing day in 2024 heard a property adjustment application in which Ms Naisby is the applicant and Mr Naisby is the respondent. My judgment on that application remains reserved.
For the reasons that follow, I have determined to allow the application and make the order sought.
Where the subsection is engaged, s 102NA of the Act provides that the party proposing to cross examine the other party must not cross‑examine that party personally and any cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.
The circumstances in which s 102NA(2) is engaged are set out in s 102NA(1) of the Act. The matters prescribed by ss 102NA(1)(a) and 102NA(1)(b) must be present in every case 102NA(2) is engaged whereas only one of the matters prescribed by s 102NA(1)(c)(i) – (iv) is necessary in any case. As discussed by Gill J in Owen and Owen (2020) 60 Fam LR 334 at [3]–[9] and [18], the matters prescribed by ss 102NA(1)(a) and 102NA(1)(b) are necessary preconditions for the engagement of s 102NA(2) of the Act, irrespective of 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, there is no suggestion from either party that they do not wish to cross-examine the other at the final hearing of this application. Second, the respondent alleges that there has been family violence between her and the applicant. The respondent has not yet filed her affidavit of evidence in chief for use at the trial of this application. She has filed an affidavit in support of the present Application in a Proceeding. In it she swears:
Allegations of Family Violence as Outlined in the Family Report in the Current
Proceedings
14.I say that since June 2020, [Mr Naisby] has continued to commit acts of and/or a course of conduct of Family Violence towards me.
15.I say that Family Violence from [Mr Naisby] towards me, is an issue in this matter.
16.A Family Report was prepared by Court Child Expert [Ms WW] on 17 June 2024. [Ms WW].
17.[Ms WW] reports that I consider family violence to be a current issue, specifically coercive control. I do still consider that family violence is a current issue in this matter.
18.[Ms WW’s] Family Report outlines:
a)at paragraph 154: "[Ms Naisby] is of a view that [Mr Naisby] seeks to control her and the children through his desire to have sole care of and decision making about the children. Whilst it is acknowledged that Judge Turner made findings that in 2020 that family violence was not present in the family, the Court may wish to consider whether the father's frequent litigations and behaviour associated with the same is systems misuse and is indicative of coercive controlling family violence."
b)At paragraph 155: " ... that the Father's decision to litigation has had a significant impact on the mother and her parenting, for which he then criticises her and uses to support his position in the litigation. This gives rise to a view that the father may be using the Court and the parenting of the children to perpetrate coercive control on [Ms Naisby]."
(As per the original)
Although the respondent’s 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. In the present case, it is uncontroversial that none of s 102NA(1)(c)(i)–(iii) apply.
It is only by an order made under s 102NA(1)(c)(iv) that s 102NA(2) will apply (at least on the facts of the case as they presently stand).
Section 102NA(1) and the provisions of the Family Law Act1975 (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.
One of the matters highlighted by the respondent to me was her experience of cross‑examination at the hands of the applicant in the property proceedings that were heard by me over a number of trial dates in 2023 and 2024. Of that, she swears in her affidavit filed on 11 October 2024:
Final Hearing of Financial Matter in 2023 and 2024
24. Our property matter proceeded to a Final Hearing on 26 April, 27 April, 5 to 8 September 2023 and 17 and 18 January 2024.
25. I was crossed examined by [Mr Naisby] personally in September, including on 8 September 2023. [Mr Naisby’s] behaviour when cross examining me caused me immense psychological distress.
26.During cross examination by [Mr Naisby] on 8 September 2024, I had a medical episode and was unable to continue being crossed-examined. An ambulance was called to attend on me at Court.
27.I attended on my psychiatrist [Dr YY] by telehealth at Court on 8 September 2023. She followed up this incident with a certificate citing that I was not well enough to participate actively in the family court trial on that date and that I lack the capacity to stand trial on that date. Annexed hereto and marked "[MSN]-01" is a true and correct copy of the certificate of [Dr YY] dated 8 September 2023.
28.The Final Hearing was unable to continue on 8 September 2023 and was adjourned on 8 September 2023 to 17 January 2024.
29.I felt I had no alternative but to retain legal counsel at a considerable cost. I retained legal counsel for the further Final Hearing dates of our property matter on 17 and 18 January 2024.
In her submissions to me, the respondent pointed out that the references in the above paragraphs to 8 September 2023 ought to be references to 7 September 2023.
I think it uncontroversial that the respondent did indeed display an adverse reaction during the course of her cross examination by the applicant in the property adjustment application. For his part, the applicant suggests that the respondent’s reaction was not as a result of her experiencing intimidation or re-traumatisation because she was the victim of family violence from him but rather, because the questions he was asking her revealed difficulties with her case that she could not answer.
I have had regard to the family report authored by Ms WW filed on 24 June 2024. This is the report referred to in the respondent’s affidavit. In that report, Ms WW records:
36.[Ms Naisby], aged 55 years, presented as anxious and emotionally distressed throughout her interview. She was supported in her interview by her mother. She required frequent breaks, acknowledging her symptoms of Post Traumatic Stress Disorder (PTSD) are acutely triggered by litigation. She was apologetic about her presentation, and was able, despite her heightened distress, to regain her composure after breaks. She answered all questions put to her and was cooperative throughout the assessment.
37.[Ms Naisby] spoke about the difficulties in the co-parenting communication. She said she can manage quick phone calls with the father, and can communicate face-to-face in public locations, but is not willing to do so in private as she finds the father to be “threatening, bullying and demanding – I fear him when alone”. She said the children’s handovers are conducted in public locations where she feels safe, such as at Coles Supermarket or in church carparks.
38.[Ms Naisby] described feeling “set up” by the father in his email correspondence. She feels his emails are lengthy in nature and are authored for the benefit of the Court. She said these emails contain mistruths, are accusatory in tone and seek for her to respond back in a lengthy manner. She finds this manipulative and difficult to deal with. She said she refuses to engage in this type of correspondence, often responding requesting he email her in a brief manner. She has noticed a pattern within this type of communication, reporting it comes in ‘waves’ in connection with upcoming Court dates. She added “I know (the emails) are going to end up in an affidavit; so I don’t write back”.
…
46.[Ms Naisby] considers family violence to be a current issue, specifically coercive control. She holds a view that the father is trying to control her and the children and the way in which they live their lives. She is concerned about “his obsessive need to control”. She said he does this through ‘gaslighting’ her and the children. She provided examples to support her position. She said [Mr Naisby] emailed [Dr ZZ] to complain about the children missing school, whilst simultaneously emailing her, asking her permission for the children to miss school to see [Mr T], and asking her to email the school to tell them they were missing school because the children were [overseas] on holiday. [Mr Naisby] told her the children wanted additional time with him to see [Mr T]. She described this as a “set up” to get her to agree to the children spending more time with him.
Unusually, I have had the opportunity to observe the respondent in the court room over a number of days and during cross examination prior to her making this application. I consider that her description that she has struggled with the process and that her struggles came to a dramatic climax on 7 September 2023 might reasonably be attributed to any number of matters. The applicant attributes them to the difficulties that the respondent has with her own case whereas the respondent attributes them at least in part to her experiences of the applicant and his controlling behaviour of her. Both are plausible explanations and both might each be causative of the respondent’s difficulties. It is noteworthy, I think, that the respondent was able to complete the property adjustment trial over two days in January 2024 with the assistance of legal representation.
In the circumstances, I consider that taking into account the need to protect 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, I should make the order sought by the respondent.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 17 October 2024
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