Neil & Zang
[2021] FamCAFC 30
•3 March 2021
FAMILY COURT OF AUSTRALIA
Neil & Zang [2021] FamCAFC 30
Appeal from: Zang & Neil [2019] FamCA 760 Appeal number(s): EAA 124 of 2019 File number(s): SYC 8450 of 2015 Judgment of: RYAN, ALDRIDGE & AUSTIN JJ Date of judgment: 3 March 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Apprehended bias – Waiver – No application to primary judge seeking disqualification – Asserted failure to consider discrete application – Challenge misstates the facts – Section 102NA Family Law Act 1975 (Cth) prohibition on cross examination – Discretionary factors – Where the appellant was self-represented at trial and the respondent was represented – Unchallenged findings of family violence perpetrated by the appellant – Trial transcript demonstrates appellant’s active participation in trial – No error demonstrated – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 65DAC, 102NA Cases cited: Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67
Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Ltd v Parramatta Designand Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Division: Appeal Division Number of paragraphs: 53 Date of hearing: 19 February 2021 Place: Sydney Counsel for the Appellant: Litigant in Person Counsel for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms Druitt Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
EAA 124 of 2019
SYC 8450 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR NEIL
Appellant
AND: MS ZANG
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RYAN, ALDRDIGE & AUSTIN JJ
DATE OF ORDER:
3 MARCH 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.No order as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neil & Zang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RYAN, ALDRIDGE & AUSTIN JJ:
INTRODUCTION
On 22 October 2019, a judge of the Family Court of Australia made final orders under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) to determine the parties’ disputes over their only child – a daughter, aged just less than six years at the time the appealed orders were made – and the adjustment of their property interests.
The father appealed from all of those orders, though by advertence to the Further Amended Notice of Appeal filed on 8 December 2020 it is evident his appeal is confined to only the parenting orders made under Pt VII of the Act. There was no challenge to the property settlement order. The mother and the Independent Children’s Lawyer (“the ICL”) both resisted the appeal.
The parenting orders made provision for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend no time with the father, though they were permitted to periodically correspond in writing. The child’s residence with the mother was not contested, but the father had sought equal shared parental responsibility and for the child to spend substantial amounts of unsupervised time in his care.
The appeal should be dismissed for the reasons which follow.
BACKGROUND
Some brief background will help explain why the appealed orders were made.
The parties separated by mid-2015 at the latest, though they lived separately from December 2014 (at [4]). Since then, the child has always lived with the mother.
The mother commenced proceedings in relation to the child in December 2015 (at [5] and [149]), shortly after a violent confrontation occurred in October 2015 between, on the one hand, the mother and maternal grandparents, and on the other, the father. He was charged with and subsequently pleaded guilty to assaulting the maternal grandmother on that occasion (at [140]).
Aside from the father’s prosecution, a family violence order was made against him by a State court for the protection of both the mother and the child (at [136] and [144]), after which the mother declined to allow the child to spend any unsupervised time with him until her interim parenting application was heard and determined. In the meantime, the father refused her offer to spend time with the child under professional supervision (at [150] and [152]). As a consequence, the child did not spend any time at all with the father until interim orders were made in October 2016 (at [152]).
The interim orders enabled the child to spend time with the father under professional supervision at a contact centre (at [155]), but the father delayed his enrolment and induction at the contact centre and so the supervised visits did not begin until February 2017 (at [159], [162]–[164] and [171]–[172]). The visits did not prove to be particularly successful. The staff of the contact centre decided to terminate their involvement with immediate effect in April 2017 due to the father’s behaviour, which breached the terms of the contact centre’s service agreement (at [185]–[194]). The staff even felt obliged to make a mandatory report to the State child welfare authority about the risk of serious harm posed to the child by the father (at [192]).
The child therefore ceased spending time with the father in April 2017 (at [194] and [200]), though the mother informed him she was willing to consider alternative supervision arrangements on condition he was willing to seek counselling from a psychologist or psychiatrist, which the father refused (at [202]).
More interim orders were later made, but not until September 2017. Such orders still required the child to spend time with the father under professional supervision, albeit at another contact centre (at [203]). The visits did not begin until February 2018 and experience again tended to demonstrate it would be unwise for the child to spend any unsupervised time with the father (at [205]–[206]). The staff of the contact centre suspended the visits in January 2019, due to the father’s asserted inability to control his anger in the presence of the child and other families and his intimidation of the contact centre staff (at [232]–[233]). As a consequence, the child spent no time with the father after January 2019 (at [235] and [303]).
The trial was heard over four days in September 2019. During the trial, the father gave evidence he would not submit to final orders requiring the child to spend time with him under supervision at a contact centre (at [306]). He even intimated he would abandon the child and return to his country of origin if the outcome of the proceedings was not as he wanted (at [338]).
Ultimately, the primary judge concluded there was no feasible option but to terminate the child’s future face-to-face contact with the father, reasoning:
281.It is difficult to envisage a regime of contact between [the child] and her father which would not expose [the child] to psychological harm.
282.Having regard to the father’s past behaviour, it is not likely that he could refrain from exposing [the child] to his strongly held and presently persistently negative views of the mother and the maternal grandmother.
283.He is adamant that [the child] needs to know that her mother has obstructed her relationship with him.
…
285.It is unlikely that the father would be able to modify his behaviour so as to be co-operative with any regime of supervision which he perceived to impinge upon his role as [the child’s] father.
286.There is no evidence that he has the capacity to be empathetic with [the child’s] emotional needs where her needs do not coincide with his.
287.It is unlikely that he will tolerate oppositional or non-compliant behaviour from [the child].
288.His past behaviour suggests that, if he is frustrated or thwarted, by [the child] or by a third party, he will lose his temper and his ability to control himself in a manner that would be at best frightening to [the child] and, at worst, dangerous.
289.Nothing in the father’s presentation at the hearing or in his evidence, suggested that he is either willing to modify his behaviour, or capable of doing so.
290.I am unable to craft any regime of contact between [the child] and the father which would not expose her to psychological harm as a result of the father’s behaviour and therefore I have reluctantly concluded that there should be no order for contact.
…
303.[The child] has not now spent time with her father since January 2019.
304.If contact is re-instated and is again suspended [the child] will experience the loss of her relationship with her father again.
305.If it is likely that the contact regime cannot be sustained, then it may be best for [the child] that a resumption of the contact is not attempted.
306.The father in cross-examination, said that he would not have contact with [the child] in a contact centre. He proposed no other supervisor.
…
310.The only feasible means of facilitating contact between [the child] and the father is by the use of professional supervision.
311.Two separate professional contact centres have refused to continue to supervise.
312.The father puts forward no feasible alternate mechanism for contact to occur.
…
336.He has already been given two such opportunities, with two separate supervised contact services, and has failed on each occasion. There is nothing in the evidence that suggests that he would behave differently if given another opportunity. Any further provision for the father to spend time with [the child] has the potential for further conflict and further litigation.
…
339.I can have no confidence that the father would accept a regime of supervision; that any agency would agree to supervise; or that if supervision occurred, the father’s behaviour would be any different from that which he has previously displayed.
Those findings were open on, if not impelled by, the available evidence. Accordingly, an order was made that the child would spend no time at all with the father.
THE APPEAL
By the time the appeal was heard, the father had abandoned his former 46 grounds of appeal and replaced them with only four. Then, as the appeal hearing commenced, the father abandoned one further ground, leaving only three to be determined.
In summary, the father contended the primary judge erred by:
(a)failing to make an order pursuant to s 102NA of the Act so as to ensure his legal representation at the trial (Ground 47); and
(b)failing to properly consider his interim application to discharge the single expert psychiatrist (Ground 49).
The last remaining ground of appeal (Ground 50) did not assert any error at all. Instead, it contended her Honour’s judgment was “unreliable” due to the reasonable apprehension of judicial bias which arises from the matters raised under the other grounds of appeal, which were pared back to only two. For clarity, the father confirmed he made no complaint of actual bias.
Ground 50
The last ground contending apprehended bias must be considered first (Concrete Pty Ltd v Parramatta Designand Developments Pty Ltd (2006) 229 CLR 577 at 611–612), but can be dismissed swiftly.
The judgment of her Honour must stand unless and until it is shown to be beset by appealable error, since error is an indispensable condition of an appeal by way of rehearing, such as this, succeeding (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203–204, 223–225). This ground did not assert that any separate and discrete error lay behind the appealed orders. If the other two grounds of appeal fail, as they do, then so must this ground because its success depends entirely upon the success of at least one of those two grounds.
If the father, as he now does, relies upon events which occurred prior to or during the trial to prove the apprehension of bias, being the way the primary judge handled two interlocutory applications (Grounds 47 and 49), he waived the disqualification application by failing to make it reasonably proximate to the conduct said to give rise to apprehension of bias. He cannot delay making a serious allegation of bias to first see whether the outcome of the case is sufficiently favourable (Vakauta v Kelly (1989) 167 CLR 568 at 577–579, 586–588; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357, 360; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76]). No disqualification application was ever made to the primary judge. Indeed, the allegation of bias was not raised until the appeal was filed.
For completeness, the father’s assertion of apprehended bias, in so far as it formerly depended upon his own perception of an improper attribution of weight to particular evidence (Ground 48) after having read the reasons for judgment and experiencing disappointment about the way in which the proceedings were decided, should also fail. The primary judge was duty-bound to decide the case on inconsistent and contradictory evidence, which entailed sifting through the evidence, apportioning different weight to different pieces of it, utilising the evidence within the statutory construct to decide the outcome, and then reasoning the outcome. All of those tasks are integral to the judicial function. No bias – either actual or apprehended – could be reasonably imputed from her Honour’s determination to attribute little or no weight to the evidence of two marginal witnesses. Even if the primary judge did fall into appealable error by doing so, it does not follow that bias may be imputed from the error.
Ground 49
On 28 November 2017, the proceedings were transferred by the Federal Circuit Court of Australia to the Family Court of Australia. Simultaneously, the Federal Circuit Court judge made orders appointing a psychiatrist (to be chosen by the ICL) as the single expert witness in the proceedings and directing the parties to pay the single expert’s fees in equal shares.
The single expert was duly chosen by the ICL and, following the single expert’s instruction, arrangements were made for the family to confer with him in early July 2018.
Just beforehand, on 22 June 2018, the father filed an interlocutory application to achieve numerous purposes: to discharge the ICL for lack of impartiality; to amend the existing interim parenting orders made in September 2017 so as to require the child to begin spending substantial amounts of unsupervised time with him; to discharge the order made in November 2017 requiring the parties to meet the single expert’s fees in equal shares; to make a substitute order requiring the mother to meet the single expert’s fees; and to hold an “urgent” interim hearing to address the mother’s “chronic perjury”. The interlocutory application was first listed on 10 July 2018, but was adjourned for hearing on 1 August 2018 and then to 9 August 2018 to suit the father (at [239] and [241]).
In the meantime, the father telephoned the single expert purporting to rescind his appointment as the single expert (at [259]–[260]), but the single expert did not accept the father’s unilateral rescission instruction and proceeded to consult with the mother and child as arranged, in early July 2018 (at [257]). The father chose not to attend his appointment (at [237]). The single expert’s report was then released to the parties and the ICL on 18 July 2018 (at [240]).
The ICL elected to withdraw from the proceedings just before the father’s application was heard on 9 August 2018 (at [242]) and a substitute ICL was later appointed. According to the father’s submissions in the appeal, he took the view that since the ICL lacked impartiality and felt obliged to withdraw, so should the single expert engaged by that ICL. He seemed to think that the same bias or incompetence which he alleged impaired the ICL also infected the single expert. It should, however, be emphasised that the primary judge did not find the ICL’s withdrawal from the proceedings was warranted and her voluntary decision to do so does not imply any admission of bias, even though the father appears not to accept the proposition.
The father wrongly contended in the appeal that his interlocutory application filed in June 2018 incorporated an application to discharge the single expert. It plainly did not, though he refused to concede the point even when confronted with the explicit terms of the application. The father then asserted he made an oral application to discharge the single expert before the primary judge, but could not verify the assertion when invited to prove it by resort to the transcript. He then alleged he made such an oral application to the Federal Circuit Court judge before the proceedings were transferred to the Family Court, but he could not verify that either, particularly since it was that judge who made the order for the single expert’s appointment. It necessarily follows that this ground of appeal, contending the primary judge fell into appealable error by failing to properly consider the father’s application to discharge the single expert, was prosecuted on a false premise. No such application was made to the primary judge.
The father’s application filed in June 2018 only relevantly contained an application to change the arrangements for the single expert’s payment by foisting the responsibility entirely upon the mother. There was no other application to consider in respect of the single expert. Even if a discharge application had been made, by the time the application was promptly listed for hearing, the single expert had already published his report and there was no ostensibly rational basis upon which to contend the single expert lacked impartiality, experience, or expertise such as to justify his discharge.
The father deposed in an affidavit he filed months later on 18 February 2019 to his belief in the single expert’s bias against him, but his belief is not objectively probative. The father’s belief in the single expert’s bias would most usually be a matter to be taken up in cross-examination of the single expert at trial, not the basis for his discharge and replacement (Nagel & Clay (2020) 60 Fam LR 550 at [134]–[162]; Bass and Bass (2008) FLC 93-366 at [23]–[39], [48]–[52]; Carpenter & Lunn (2008) FLC 93-377 at [219]–[227]). At trial, the father exercised his prerogative not to cross-examine the single expert (at [246]) and thereby deliberately abstained from challenging the single expert about any alleged bias. The primary judge’s acceptance of the single expert’s unchallenged evidence was therefore well open.
The father demonstrated no error by the primary judge concerning the single expert’s retention in the proceedings, so this ground should fail.
Ground 47
The parties adduced an abundance of evidence about past instances of family violence, their argument over which exhausted a large proportion of the trial.
The father’s alleged violent, aggressive and overbearing disposition was the central plank of the mother’s case for why she proposed having exclusive parental responsibility for the child and why any time spent by the child with the father should be tightly constrained and controlled by her. The mother felt intimidated and unable to share parental responsibility with the father and, furthermore, she wanted the child protected from the risk of physical or psychological harm posed by her exposure to the father’s easily inflamed rage.
Conversely, the rationale behind the father’s vigorous pursuit of allegations of the mother’s perpetration of family violence upon him is difficult to understand, as it seemed to serve no practical purpose. He proposed that the child continue to live with the mother, so he accepted she was safe in the mother’s care. He proposed that the child begin spending expansive amounts of unsupervised time with him, so he contended she was safe in his care. He proposed that the parties be able to freely attend the child’s school, so he did not envisage any further unpleasant confrontations between them there. Finally, he wanted the parties to have equal shared parental responsibility for the child, so he expected they would be able to confer over and negotiate the resolution of important issues relating to the child, as the law would then have required of them (s 65DAC).
Despite the rather benign context of the father’s case, this ground of appeal concerns an alleged error in the primary judge’s application of s 102NA of the Act to the conduct of the trial, which section provides as follows:
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.
At trial, the mother was legally represented, but the father was not. Before the trial began, the father sought to invoke the provisions of s 102NA of the Act, as these excerpts of the transcript reveal:
[HER HONOUR]: …my associate received an email from [the father] yesterday indicating that he wished to invoke the provisions of section 102NA. Is that still your application, [father]?
[THE FATHER]: Yes. It is, your Honour.
…
[HER HONOUR]: … you might address me particularly on why you say that this case comes within the provisions of subsection (1)(c).
…
[THE FATHER]: I spoke to the duty solicitor on Friday, and she told me that a discretionary ban could be in place if there were allegations of domestic violence on either side …
[HER HONOUR]: If you wish to invoke the provisions that relate to discretion, which are the provisions of subsection (3), then what do you wish to say to me about why I should invoke those provisions?
[THE FATHER]: Your Honour, I just don’t feel comfortable cross-examining people who have assaulted me physically. I know I will get upset, and I won’t be able to remember what I’m saying.
…
[HER HONOUR]: The time that it takes to arrange representation is about three months. That would mean these proceedings would have to be adjourned yet again, and you would not get a hearing, then, until some time in about June of next year.
…
[HER HONOUR]: Legal Aid is controlled by the Legal Aid Commission, not by me. The fact that [the mother] may or may not have received a grant of legal aid is not a matter that I consider to be relevant for the exercise of discretion pursuant to subsection (3). Is there anything else you wish to say?
[THE FATHER]: I do not feel comfortable cross-examining people who have assaulted me in the past. It’s not fair on my part, and I do wish to have the family violence allegations and cross-examining ban apply in this matter.
[HER HONOUR]: Is there anything else that you wish to say?
…
[THE FATHER]: So the applicant has admitted to [the State child welfare authority] to assaulting me in front of my friend. The applicant assaulted me numerous times in front of my friends and in private. Her parents assaulted me the day that I was arrested and charged with an AVO. I don’t feel comfortable personally cross-examining them, and I do not believe that I will be able to deliver a fair and balanced case for myself, especially when I’m going against a barrister and solicitor that I’ve just been made aware are being funded by Legal Aid.
[HER HONOUR]: Is that your submission? Is there anything else?
[THE FATHER]: That’s my submission.
[HER HONOUR]: Thank you.
(Transcript 24 September 2019, p.2 line 14 to p.4 line 36)
Following that exchange, the primary judge determined that no order should be made pursuant to s 102NA of the Act and the trial then proceeded. The reasons for that procedural decision were later provided in the reasons for judgment (at [247]–[256]).
The primary judge was correct to find the provisions of sub-sections (1)(c)(i), (1)(c)(ii) and (1)(c)(iii) were not satisfied by the evidence, in which case no prohibition upon party/party cross-examination under s 102NA(2) automatically applied under the Act (at [250]–[254]).
Rather, the father requested that her Honour exercise discretion to invoke the prohibition by the application of s 102NA(1)(c)(iv) and s 102NA(3)(b)(ii). Having alleged his status as a victim of the mother’s family violence, the father asserted he was apprehensive about having to then personally cross-examine her, though he was unconcerned about being cross-examined as a witness by her counsel. However, in deciding the preliminary procedural application, the primary judge considered only the latter factor and not the former, and so did not take into account as a material consideration how the father might be adversely affected by having to personally ask questions of the woman who assaulted him.
Specifically, her Honour only said:
255.Section 102NA(3) permits the Court to make an order in appropriate circumstances. However, in this instance, it is the father who seeks to invoke the legislation. The mother is represented by counsel and therefore there is no suggestion that the father, who alleges that he is a victim of family violence at the hands of the mother, will be cross-examined by the mother personally.
256. There is no basis to invoke the provision.
The primary judge consequently erred by misconstruing the father’s point, but the question to be answered is, what is the consequence? The answer is none.
The father suffered no disadvantage and the error had no effect at all upon either the conduct of the trial or the orders which resulted and, since no miscarriage of justice resulted, it would not be “appropriate” to order a re-hearing or re-exercise discretion on account of it (Conway v The Queen (2002) 209 CLR 203 at 207–208, 217, 219–220, 232, 244; Lane & Nichols (2016) FLC 93-750 at [72]–[81]). That conclusion is readily vindicated.
The father told the primary judge he did not feel “comfortable” about the prospect of cross-examining the mother, but no aspect of his subsequent conduct of her cross-examination demonstrated his performance was inhibited by his reticence. The mother was the first witness called. The father informed the primary judge he had “massive amounts of questions for her”, suggesting he was well prepared in advance for her cross-examination, though he said he was not ready to begin immediately. To accommodate the father, the primary judge invited the ICL to cross-examine first, followed by the father. Despite his concern about personally cross-examining the mother, the father put it aside and did so vigorously for many hours. The father did not point to any portion of the transcript which tended to prove any difficulty or hesitation in his forensic examination of the mother, as distinct from some difficulty formulating admissible questions.
The father is not a person accustomed to subordination. The evidence ably proved his willingness to regularly challenge and lodge formal complaints about authority figures with whom he is displeased – such as the police officer who charged him over the incident in October 2015 (at [137]), the lawyers who represented him in those criminal proceedings (at [143]), the lawyer representing the mother in these proceedings (at [156]–[158]), the staff of the first contact centre which terminated its services (at [195]–[201]), the staff of the second contact service which terminated its services (at [210], [221]–[222], [225] and [227]–[230]), the first ICL appointed in the proceedings (at [238]–[239]), and the single expert appointed in the proceedings (at [259]–[260] and [275]). Although that evidence was not considered by the primary judge in this particular context, such determination powerfully implies the father was not overborne by the experience of having to personally cross-examine the mother.
While the father may have considered himself generally disadvantaged by his lack of legal representation at the trial, that detriment is commonly experienced by self-represented litigants. It was not a factor which materially influenced the exercise of discretion under s 102NA of the Act, which provision is designed for the specific purpose of alleviating the anxiety experienced by victims of family violence having to directly confront their abuser in court and ought not be called to aid by a litigant simply to obtain legal aid, not otherwise available, to ensure legal representation for the trial.
In the event of the success of the appeal, the father sought an order in terms which ensured he would be legally represented at the re-hearing below, but he was mistaken about the extent of the Court’s power. No order made pursuant to s 102NA(1)(c)(iv), triggering the prohibition on cross-examination under s 102NA(2), positively ensures the father’s legal representation. The provision of funding for legal representation is entirely within the province of the relevant State legal aid authority, as the primary judge attempted to point out to the father during his oral submissions.
As it transpired, the primary judge eventually made numerous findings about the commission of family violence, well open on the evidence and wholly unchallenged in the appeal, which are relevant to this ground of appeal. The findings tend to enhance the validity of the primary judge’s discretionary decision not to apply s 102NA of the Act in the father’s favour and avoid the concomitant adjournment of the trial. The primary judge sought to quell the fierce contest over the commission of past family violence, but without adjudicating every discrete allegation (at [23]). After examining a selection of the allegations, including in particular the incident in October 2015, the primary judge described global findings in these terms:
19.Having heard the evidence in relation to the event which occurred in October 2015, involving the parents, [the child] and the maternal grandparents, and particularly having listened to the recording of the event, I accept that the father is capable of sudden and frightening verbal violence.
…
50.On any version of the event, the father entered the mother’s home uninvited and despite the attempts of the maternal grandparents to stop him entering. Having heard the recording of the event in October 2015, I do not accept that the father’s behaviour while he was in the mother’s home on that occasion would have been polite and respectful. I accept that, when he was thwarted, the father was capable of both verbal violence and physical violence and that it is likely that he displayed both on the occasion in question, on which ever date it occurred.
…
327.The father’s conduct towards the mother and the maternal grandparents, in [the child’s] presence, constitutes family violence.
328.I accept that when the mother slapped the father’s face in 2012, and when the grandmother attempted to intervene on … October 2015, those acts can also be characterised as family violence but they pale into insignificance when compared with the father’s behaviour.
If the father truly was the principal aggressor in the relationship, as was found and is not challenged, then the justification for the discretionary engagement of s 102NA in his favour all but dissolved.
Finally, the point made by the father in the appeal about the primary judge’s failure to correctly apply s 102NA of the Act tended to contradict his position at trial, when he said he was unconcerned about his capacity to give clear evidence when cross-examined by the mother’s counsel. He submitted in his Summary of Argument:
31.…the integrity of the evidence in these proceedings was tainted, in that [my] ability to give clear evidence was compromised by the requirement that [I] cross-examine the mother directly, despite allegations of family violence.
The submission betrays a fundamental misunderstanding. The father did not give evidence when he cross-examined the mother; only she did, and her evidence was unequivocally clear. The father gave his evidence by affidavit and then orally when he was cross-examined, which evidence was also clear. None of the evidence was “tainted”, as the father alleged, by the manner in which the trial was conducted.
This ground should fail.
Costs
The mother was self-represented and had no costs to recoup in the event of the appeal’s dismissal.
The ICL confirmed no costs order was sought if the appeal was dismissed.
There will be no order for costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan, Aldridge & Austin. Associate:
Dated: 3 March 2021
3
8
1