Nevins & Urwin (No 2)
[2022] FedCFamC1F 121
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nevins & Urwin (No 2) [2022] FedCFamC1F 121
File number(s): BRC 5254 of 2018 Judgment of: HOGAN J Date of judgment: 7 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ordered to apply. Legislation: Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018
Cases cited: Hurley v Melton (No. 2) (2020) 61 Fam LR 405; [2020] FamCA 917 Number of paragraphs: 12 Date of hearing: 7 March 2022 Place: Brisbane Counsel for the Applicant: Mr McGregor Solicitor for the Applicant: Hofstee Lawyers Solicitor for the Respondent: Amanda Fawaz Solicitor Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 5254 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEVINS
Applicant
AND: MR URWIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
7 MARCH 2022
IT IS ORDERED THAT:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.
NOTATION
A.
Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies to any
cross-examination in the proceedings, the Court has today advised the parties that:
(i)pursuant to those requirements, neither party may cross-examine the other party personally; and
(ii)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party; and
(iii)they are able to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for the provision of a lawyer by completing an application form available by accessing [email protected]; and
(iv)a copy of these Orders will be provided by the Court to Legal Aid New South Wales, which administers the said scheme.
IT IS NOTED:
B.The Court respectfully requests that Legal Aid New South Wales accord any Application submitted by the Respondent father for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the part-heard proceeding is listed to recommence on 28 March 2022.
C.The Court respectfully requests that Legal Aid New South Wales consider allocating the matter of the Respondent father’s representation in these proceedings to his current solicitor, Ms Fawaz given her long standing involvement in the proceedings and that she was the solicitor on the record when the matter was before the Court prior to the Respondent father being charged in August 2019.
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 Nevins & Urwin (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have before me today an oral application (albeit foreshadowed by correspondence authored by the father’s solicitor, I think, about a week ago) that the Court order, pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), that the requirements of s 102NA(2) of the Act apply to the cross-examination of the mother by the father in these proceedings.
If s 102NA (2) of the Act applies, then the examining party (in this case, the father) must not cross-examine the witness (in this case, the mother) personally and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party (in this case, the father).
The application made by the father’s solicitor is not opposed by either the Independent Children’s Lawyer or Counsel who appears on behalf of the mother. In fact, Mr McGregor, Counsel for the mother, quite appropriately submitted that, in the circumstances of this case, it would be appropriate to make an order pursuant to s 102NA(1)(c)(iv) if I considered it appropriate to do so.
In support of the application, the father’s solicitor made submissions which included the following: that there has previously been in force a final apprehended violence order for a duration of one year to which the father consented in or around February 2018; that order came into force after a police application for a temporary order was made for the purpose of protecting the mother; there were criminal proceedings against the father from about August 2019 (when he was charged with offences in relation to alleged conduct towards a child, being charges in respect of which he was found not guilty in December 2021 when judgment was delivered by a judge of the District Court of New South Wales after that judge conducted a judge-only criminal trial); there have been proceedings on foot in the H Town Local Court in New South Wales in relation to an apprehended violence order, in which, on about 1 February 2022, the police withdrew the same as the father proffered, by his legal representative, an oral undertaking to that court that he not act in a manner inconsistent with the standard and/or mandatory conditions of apprehended violence orders and not contact the mother or the children unless through a lawyer or pursuant to an order of a court.
I accept, without hesitation, Ms Fawaz’s information from the bar table of her efforts to attempt to obtain a written copy of the undertaking which she proffered herself on behalf of her client to the H Town Local Court; I accept she has been unable to obtain this because of the impact upon that court of the most recent flooding.
I note, also, Ms Fawaz’s submissions that it was appropriate for this Court, in the circumstances before it, to make an order pursuant to s 102NA(1)(c)(iv) of the Act; that, therefore, any cross-examination by her client of the mother in these proceedings be conducted by a legal practitioner; and that, as a consequence, the Scheme put into effect at the time the section was enacted be made available such that the father retain the benefit of the legal representation he has had since the matter was before me prior to him being charged in August 2019.
As I have on other occasions when this matter has been before me, I reiterate that it remains part-heard: the father was charged at a time when I was about to receive what were then intended to be final submissions on behalf of each of the parties in the proceedings for parenting orders. The matter has, in essence, stood in abeyance pending the finalisation of the criminal proceedings involving the father, which proceedings were finalised in December 2021.
As I noted in Hurley v Melton (No. 2),[1] which I delivered on 22 October 2020, the Act contains no statutory guidance about matters to be considered by a court in determining whether or not to make an order that the requirements of s 102NA(2) apply to the cross-examination referred to in s 102NA(1) of the Act. However, the purpose of the legislation by which s 102NA and s 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied the Bill.[2] The contents of the same include that:
…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.
[1] (2020) 61 Fam LR 405.
[2] Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018.
As I said in Hurley v Melton (No.2), 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 an alleged perpetrator of family violence can affect an alleged victim’s ability to give clear evidence; and also as protecting against the possibility that, by virtue of the impacts of family violence alleged to have occurred, an alleged victim may not be able, adequately, to cross-examine a perpetrator.
In the circumstances of this case, having regard to the matters that I consider it appropriate to take into account, being:
(a)the circumstances of these proceedings;
(b)the fact that there has previously been a final apprehended violence order for a duration of one year; and
(c)that these two parents have previously been involved, in various capacities, in criminal proceedings that proceeded to trial as recently as December 2021,
I am satisfied that it is appropriate to make an order that the requirements of s 102NA(2) of the Act are to apply to the cross-examination by the father of the mother in these proceedings.
I also think it appropriate that I make a number of notations. These will be that, given that s 102NA(2) of the Act has been ordered to apply to any cross-examination in the proceedings, I will, today, advise the parties that, pursuant to those requirements, neither may cross-examine the other personally; that, pursuant to the requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party; that there is available a scheme entitled the Commonwealth Family Violence and Cross-Examination of Parties Scheme which may be accessed by filling in the appropriate form seeking the provision of a lawyer; and that a copy of the order will be provided by the Court to Legal Aid New South Wales, the entity that I understand administers the Scheme in New South Wales.
The notations will also include that the Court respectfully requests that Legal Aid New South Wales accords significant priority to any application submitted by the father for the provision of a legal practitioner pursuant to the Scheme, given that the part-heard proceeding is listed to recommence on 28 March 2022; and that Legal Aid New South Wales also consider allocating the father’s representation in these proceedings to his current solicitor, Ms Fawaz, given:
(a)her long-standing involvement in the proceedings; and
(b)that she was the solicitor on the record when the matter was before the Court prior to the father being charged in August 2019.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 10 March 2022
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