NORRIS & DENIS
[2019] FCCA 2653
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NORRIS & DENIS | [2019] FCCA 2653 |
| Catchwords: FAMILY LAW – Cross-examination – self represented litigant – adjournment – costs. |
| Legislation: Family Law Act 1975 (Cth), s.102NA |
| Cases cited: Carney & Carney (No.2) [2019] FCCA 1275 |
| Applicant: | MS NORRIS |
| Respondent: | MR DENIS |
| File Number: | WOC 376 of 2017 |
| Judgment of: | Judge Kemp |
| Hearing date: | 12 September 2019 |
| Date of Last Submission: | 12 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moutasallem |
| Solicitors for the Applicant: | DGB Lawyers |
| Respondent in person |
THE COURT ORDERS, ON 12 SEPTEMBER 2019, THAT: -
The hearing listed for 12 and 13 September 2019 be vacated.
The requirements of s.102NA of the Family Law Act 1975 (“the Act”) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.
The wife’s costs of and incidental to the husband’s application under s.102NA of the Act and the costs of 12 September 2019 are reserved.
The matter be adjourned to 10 December 2019 at 9.30am before Judge Altobelli for mention for the purposes of the allocation of hearing dates, with priority.
THE COURT NOTES, ON 12 SEPTEMBER 2019, THAT: -
The parties have each been advised by the Court:
(a)That pursuant to those requirements, the husband may not cross-examine the wife personally;
(b)That pursuant to those requirements any cross-examination of the wife may only be conducted by a legal practitioner acting on behalf of the husband;
(c)As to the availability of the Commonwealth Family Violence and Cross Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Norris & Denis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 376 of 2017
| MS NORRIS |
Applicant
And
| MR DENIS |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, Judge Altobelli, on 31 January 2019, listed the matter for final hearing for 2 days, commencing on 12 September 2019. His Honour made a number of trial directions on that date, including, in particular, that each party file and serve one consolidated trial affidavit in support of the orders sought by them by 2 September 2019.
The wife filed her trial affidavit on 2 September 2019. That affidavit identifies, in Annexure “D”, a final apprehended domestic violence order (“ADVO”) made against the husband on 18 March 2019, with the ADVO having a duration of some 2 years from that date. The existence of that final ADVO would not have been known to Judge Altobelli at the time that he listed the matter for final hearing.
The said affidavit of the wife also identifies (in paragraphs 117 through to 137) matters which she places under the heading: “Family Violence and Court A Proceedings”.
The matter did come before Judge Altobelli on 21 August 2019 when His Honour dealt with an application in a case filed by the wife seeking the production of various documents from the husband. His Honour made orders in accordance with that application and reserved the wife’s costs.
The husband, similarly, had filed an application in a case on 14 August 2019 which His Honour dismissed on that day. That application in a case sought that the final hearing dates listed on 12 and 13 September 2019 be vacated and that a, further, hearing date be ordered.
The affidavit of the husband in support of his application, filed on 14 August 2019, sought the vacation of the hearing dates based on his declining health and his need to get rehabilitation and indicated he was looking for a timeframe of some 6 to 8 months for a new hearing date.
The husband said that over the last 3 to 4 years, he had developed a severe dependence on alcohol and “Xanax” in order to deal with his stress and anxiety. The husband said that due to his health issues, including an addiction to “Xanax” and alcohol, he had been unable to comply with orders for financial disclosure. Further, he said that he needed to go into Drug and Alcohol rehabilitation so that he would be better positioned to deal with these proceedings. As said, Judge Altobelli dismissed the husband’s application based on the matters then deposed to by the husband.
At that point in time, the husband did not raise any matter or issue under s.102NA of the Family Law Act 1975 (Cth) (“the Act”).
The Court notes that none of the parties’ affidavits filed at the time of their initiating application and responsive material identified allegations of family violence.
Section 102NA of the Act states:
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.
The husband’s s.102NA issue was taken up in his email of 4 September 2019 to Chambers. His email appears to have been drafted by Legal Aid, which had given him some advice. Upon receipt of that email, my Chambers listed the matter for 9.30 am on 9 September 2019. Ms Prosperi, who appeared on 9 September 2019 for the wife, indicated that she wished to have an adjournment of that application until the first morning of the hearing on 12 September 2019, as her client had Counsel briefed and she wished to have Counsel available to argue the point.
The Court inquired as to why nothing had been raised with Chambers, given that the relisting for 9 September 2019 was advised to the parties on 4 September 2019. Ms Prosperi’s response was that she had been unable to speak to her Counsel until Friday, 6 September 2019 when she learnt that her Counsel was then unavailable on the morning of 9 September 2019.
On 9 September 2019, the Court indicated that it would treat the husband’s application as an oral application to vacate the hearing dates, pursuant to s.102NA of the Act, reliant upon the grounds set out in his email dated 4 September 2019 to Chambers.
Relevantly, Mr Denis did not oppose his said application being determined on the first morning of the hearing and that application was, accordingly, stood over to that date.
The Court notes that, notwithstanding the orders made by Judge Altobelli on 21 August 2019 in relation to the production of documents by the husband, Ms Prosperi said that the husband had failed to produce any of those documents. Ms Prosperi said that this had necessitated the issuance of subpoenas to produce such documents, which have been made returnable on the first morning of the hearing.
The Court has also had regard to the affidavit of the wife filed on 20 August 2019 which refers (in paragraphs 31 to 36) to the final ADVO made against the husband for the wife’s protection, following a defended hearing in Court A at Suburb B. The affidavit also refers (at paragraph 10) to the wife being aware that the husband had sent an earlier email directly to Judge Altobelli’s Associate, seeking that the 2 day final hearing, then commencing on 17 January 2019 to be vacated until, at least, May 2019, on the basis that he did not have enough time to engage a new lawyer and that he intended on defending the making of the final ADVO which had then been listed for hearing before Court A at Suburb B on 18 March 2019.
The Court notes, further, that following the making of the final ADVO, the husband filed an appeal which was listed in Court F at Wollongong on 5 May 2019. On that date, the appeal hearing was then listed for 5 July 2019 before Judge G. On 5 July 2019, the appeal was heard and determined by His Honour. The appeal was dismissed and, accordingly, the final ADVO was then confirmed.
On 12 September 2019, Mr Moutasallem of Counsel appeared for the wife. The thrust of his opposition to the husband’s application was as follows: -
a)That the allegations of family violence made by the wife, in her trial affidavit, could be described as, relatively, minor or on the lower end of the scale.
b)That in the circumstances, the wife would not read those paragraphs of her affidavit which identified matters of asserted family violence.
c)That the husband was utilising s.102NA of the Act as a tactic to delay the inevitable hearing of the matter.
d)That the relevant section was a protective provision not intended to punish persons who have asserted that they have been the subject of family violence.
e)That his cross examination of the husband would not be extensive and that the matter could be contained to one (1) day.
f)That the wife had complied with all directions and would be prejudiced by an adjournment of the hearing in terms of delay and costs. The husband, however, had not filed a response, a trial affidavit nor a financial statement. Mr Moutasallem submitted that, given that the wife had so complied, the matter should proceed absent her cross-examination.
g)That some reliance could be placed on the decision of Judge Costigan in Carney & Carney (No.2) [2019] FCCA 1275 where Her Honour exercised her discretion to permit reliance upon the affidavit and financial statement of Ms Carney, without her being subjected to cross examination. A copy of the decision provided refers to s.64 of the Federal Circuit Court Act 1999 (Cth) which was also relied upon Mr Moutasallem. The decision, itself, does not cover the reasoning of Her Honour as she delivered her reasons ex tempore. Nevertheless, the Court accepts Mr Moutasallem’s submission that that decision turned, substantially, on the fact that there was some incapacity which required the appointment of a litigation guardian for Ms Carney. The Court notes that that issue is not, relevantly, applicable here.
h)That the Court should not, in the circumstances, exercise its discretion under s.102NA of the Act.
The Court raised with the husband whether he, in person, would seek to cross examine the wife over matters including issues as to family violence. The husband said that he intended to do so but wanted a legal representative to do that on his behalf as he was of the view that the provision (s.102NA) applied and that he was entitled, in those circumstances, to Legal Aid to obtain such representation. The Court notes that even if the wife did not read the identified paragraphs of her affidavit that would not prevent the husband cross examining her about those matters and, indeed, seeking to tender those paragraphs in his own case with cross examination being, at large, provided it was, otherwise, relevant. Of course, Mr Moutasallem’s indication that his cross examination of the husband could be limited to around half a day would not necessarily impact on the time that the husband might take in his cross examination of the wife if self-represented and, further, under the impediment of some hearing difficulties, noting that the husband needed to utilise the Court’s hearing loop facilities.
The Court is not in a position, at this time, to determine, as a factual finding, whether there has been any intentional delay by the husband as a tactic in this matter. The husband denies the same.
The Court notes that the Act makes no distinction in s.102NA between allegations of family violence which are minor or at the “lower end of the scale” and other, more serious, matters.
The Court also notes that no other matters were identified as a prejudice to the wife, save delay and costs. The Court is of the view that her position on costs can be protected by an order which reserves her costs of and incidental to the husband’s application. This would include any costs thrown away by the adjournment of the hearing dates.
Finally, Mr Moutasallem, appropriately, conceded that if this matter was over listed against another matter for hearing in this Court and the Court must determine which matter gets a start based on other priority issues, and those other priority issues favoured the other matter so that an adjournment of this matter would, necessarily, follow, then he would no longer press his opposition to orders which could be made under s.102NA of the Act which would, otherwise, provide for legal representation for the husband. The Court notes that that, in itself, may ensure that the matter is dealt with more quickly than if the husband was self-represented, as noted above. The Court notes that this matter was, in fact, listed against a parenting matter with some urgency and that, as such, the parenting matter was given priority.
In the circumstances, the Court is, nevertheless, of the view that s.102NA, clearly, applies. In terms of that provision, the Court is satisfied that there is an allegation of family violence between the examining party and the witness party. Further, the Court is satisfied that the husband has been the subject of a family violence order. Accordingly, the Court is of the view that the provisions of s.102NA(2), therefore, apply to the cross-examination and the husband, who is self-represented, must not cross-examine the applicant, personally. The cross‑examination must be conducted by a legal practitioner acting on behalf of the husband.
While it would appear that the husband’s earlier applications for an adjournment to obtain legal representation have not produced a lawyer, it would appear that, at some times, the husband was, in fact, legally represented. A solicitor, being Ms C of D Solicitors, was on the record and withdrew from the record on 25 October 2017 for the husband. Subsequently, Ms E represented the husband and she, too, withdrew on 13 December 2018. As such, the husband is presently self-represented in these proceedings.
Given the effect of s.102NA, the proceedings will need to be adjourned to enable the husband to apply for and obtain a grant of Legal Aid, pursuant to the scheme with Legal Aid for the implementation of the provisions of s.102NA. The matter will, therefore, need to be placed before Judge Altobelli on a date when His Honour can give consideration to the allocation of further final hearing dates. That date will be 10 December 2019. The Court would request that His Honour look at that issue, with some priority.
Further, as said, the wife’s costs will be reserved, as referred to above.
The Court made its orders, as set out at the commencement of these reasons, on 12 September 2019 and indicated to the parties that short reasons would be provided. These are those reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 20 September 2019
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