Owen & Owen
[2020] FamCA 90
•17 January 2020
FAMILY COURT OF AUSTRALIA
| OWEN & OWEN | [2020] FamCA 90 |
| FAMILY LAW – PRACTICE AND PROCEDURE – application of s 102NA of the Family Law Act 1975 (Cth) – statutory interpretation – discretionary ban on personal cross-examination – relevant factors to consider – violence against a child rather than a party – effect of imposing a ban – importance of legal representation – scheme for the funding of legal representation – effect of uncertainty as to the availability of the scheme – unfair hearing – impact on assessing best interests of a child. |
| Family Law Act 1975 (Cth) ss 4AB, 102NA, 102NB Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 |
| Saska & Radavich [2016] FamCAFC 179 Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 9th ed, 2019 |
| APPLICANT: | Ms Owen |
| RESPONDENT: | Mr Owen |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cruz |
| FILE NUMBER: | CAC | 1752 | of | 2016 |
| DATE DELIVERED: | 17 January 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 19 December 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barker & Barker |
| SOLICITOR FOR THE RESPONDENT: | Self-Representing |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid, ACT |
Orders
The application to apply the provisions of s 102NA(2) to the hearing of this matter is refused.
The matter is adjourned for further directions to 29 January 2020 at 10am.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Owen & Owen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1752 of 2016
| Ms Owen |
Applicant
And
| Mr Owen |
Respondent
REASONS FOR JUDGMENT
In this case an issue arises, on oral application of the wife, as to the discretionary application of the provisions of s 102NA of the Family Law Act 1975 (Cth) (‘the Act’). In short, an exercise of the discretion as sought by the wife would prohibit the husband from personally cross-examining the wife.The husband indicated that he was comfortable with the discretion being exercised, unless he is unable to retain legal representation. If unable to obtain legal representation the husband opposes the making of the order due to the importance of being able to question the evidence against him.
Section 102NA provides a statutory scheme for dealing with cross-examination by unrepresented litigants in the context of party to party family violence allegations. The provision is as follows:
(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.
The Section has mandatory application in a number of circumstances and discretionary application in others. In either case there are necessary preconditions to the application of the provision.
The first precondition is that the provision only applies when one party intends to personally cross-examine another party. The provision has no application in relation to the cross-examination by a party of a non-party witness.
In this case the husband, who is currently unrepresented, has indicated the need to cross-examine the wife, in circumstances where he contests her evidence.
While the husband indicates that he hopes to procure legal representation, he at present does not have representation. There is no reason to be confident that he will be able to retain representation.
Under those circumstances, the indication of an intention to cross-examine is sufficient to meet the first precondition. If the husband does subsequently secure representation, the section will no longer have application.
The second precondition is that there is an allegation of family violence between the parties (the examining party and the witness party).
It should be observed that what is required is not the proof of family violence, but rather the allegation of family violence. It should also be recognised that the allegation must relate to family violence between one party and the other, rather than against another family member. The provision does not distinguish between which party is the alleged perpetrator and which is the alleged victim. As emphasised in the notes to the section:
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.
The second precondition picks up the definition of family violence as set out at s 4AB(1) and (2) of the Act, which is as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Although the definition gives some indication as to the quality of the behaviour by the use of the terms “violent” and “threatening”, the categories of behaviour are not closed. The critical aspect of the definition is that it is directed to behaviour that is controlling, coercive or engenders fear.
As was stated by Bryant CJ in Saska & Radavich [2016] FamCAFC 179, the definition in s 4AB contains a number of alternatives:
So to be clear, family violence as defined in the Act does not need to be coercive or controlling (although it may be), if there is violent, threatening or other behaviour that causes a family member to be fearful. Or, alternatively, such behaviour that coerces or controls a person will constitute family violence. Hence, the examples that are given in s 4AB subsection (2) which give context to the meaning of subsection (1).
Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1.To exercise restraint or direction over; dominate; command
The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. The examples given at s 4AB(2) illustrate the range of force, domination or command as incorporating both physical and non-physical means. For example, control through the unreasonable withholding of financial support constitutes a non-physical means of domination of another.
What is key is, to reiterate what has been expressed above, that the behaviour coerces or controls or causes the family member to be fearful. While the dictionary definitions are of assistance in understanding the terms, it is the terms themselves as expressed in the Act that form the statutory definition.
In this case, albeit in general terms, the wife alleges family violence by the husband against herself. This satisfies the second precondition.
Once these two preconditions are met, the restrictions as to cross-examination at s 102NA(2) become applicable provided one of the conditions set out at s 102NA(1)(c) are met.
In this case, the requirements set out at s 102NA(1)(c)(i), (ii) and (iii) are not met. If they were, the ban on personal cross-examination would be automatically in force by operation of the Act without any further input by the Court.
As they do not apply, what remains is the question, pursuant to s 102NA(1)(c)(iv) of whether the Court will, as a matter of discretion, order that the requirements of s 102NA(2) apply to this case.
The discretion pursuant to s 102NA(1)(c)(iv)
While s 102NA creates a discretion, other than setting out the necessary precursors to the exercise of the discretion, it is silent as to the considerations that govern its exercise. The only further provision relating to the discretion is at s 102NA(3) which provides that the order may be made by the Court on its own initiative, or on the application of the witness or examining party, or the Independent Children’s Lawyer.
In the absence of a statutory identification of relevant considerations, the legislative purpose of the provision assists in framing relevant considerations.
In the leading work on statutory interpretation, Dennis Pearce[1] notes the longstanding notion that establishing the intention of the legislature in enacting the legislation is key to applying the legislation to particular facts, extracting from the judgment of Gageler J in Work Health Authority v Outback Ballooning Pty Ltd where his Honour described the function of courts in construing legislation to determine “the purpose and effect (and hence the imputed intention)”[2] as follows:[3]
“[O]ne of the surest indexes of a mature and developed jurisprudence” is “to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide meaning”. The responsibility of the court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal right or legal obligations, is correspondingly “to give the words of a statutory provision the meaning that the legislature is taken intended them to have”. That a finding of purpose can involve a “contestable judgement” only heightens that responsibility.
[1] Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 9th ed, 2019) 35.
[2]Work Health Authority v Outback Ballooning Pty Ltd (2019) 363 ALR 188 [74].
[3]Work Health Authority v Outback Ballooning Pty Ltd (2019) 363 ALR 188 [76].
Dennis Pearce also observes the permissibility of reference to extrinsic materials in this process to identify the mischief being addressed by the legislature[4] in enacting the legislation, and hence the purpose of the enactment. Pearce draws from the judgment of Edelman J in Unions NSW v New South Wales[5] where his Honour, in describing the “search for the purposes or intended aims of the legislature” as requiring:
A concurrent consideration of the meaning of words used in their context together with the purpose for which the words are used, in the sense of their intended aim. Hence, purpose must be identified by the same context, and hence the same extrinsic materials, that elucidate the meaning of the words.
[4] Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 9th ed, 2019) 92.
[5]Unions NSW v New South Wales [2019] HCA 1 [169].
The terms of s 102NA are suggestive of the mischief that they combat, in that they present a legislative response to direct cross-examination in particular cases involving family violence. The mischief, and purpose, is identified with greater clarity by reference to extrinsic material. In particular, the Explanatory Memorandum accompanying the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 described the Bill (in part) as follows: [6]
1.(The Bill) would ensure that appropriate protections for victims of family violence are in place during cross–examination in all family law proceedings.
…
3.It is intended that a party would obtain their own legal representation where possible, and that legal aid would be available where a party is unable to obtain private representation.
4.… Personal cross-examination by an alleged perpetrator can expose victims of 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 power imbalances created by family violence.
…
6.It is important that any ban balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.
[6] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018.
The Explanatory Memorandum went on to explain that the provision would not trespass upon the right to a fair hearing. It explained that “the procedures followed in a hearing should respect the principle of “equality of arms”, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.” It also explained that the consequence of no cross-examination taking place would arise where a party was “unwilling to obtain the services of a legal practitioner or accept representation from legal aid” in which case they would still be able to otherwise present their case.
The centrality of the balance between the protection of alleged victims of family violence as described above and ensuring a fair hearing by the provision (where necessary) of legal representation was reinforced by the recommendations of the Legal Constitutional Affairs Committee that considered the Bill,[7] which were as follows:
The committee recommends that details regarding the funding of the measures contained in the bill be made public prior to commencement of debate on the bill in the senate.
The committee recommends that the bill be passed, subject to recommendation 1.
[7] Legal and Constitution Affairs Legislation Committee, The Senate, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] (2018) 20.
The funding referred to above related to the need for funding that would cover people subjected to the ban, but who could neither afford legal representation, nor qualify for legal aid.[8]
[8] Legal and Constitution Affairs Legislation Committee, The Senate, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] (2018) [2.7], ff.
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.
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.
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.
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.
The considerations in this case
A consideration that would speak strongly against the exercise of the discretion to apply the ban on personal cross-examination would be the inability on the part of a litigant to access legal representation to allow cross-examination to go ahead. The capacity to challenge another party’s evidence by means of cross-examination is a fundamental aspect of a fair hearing that determines the final rights of litigants. Being deprived of the capacity to cross-examine undermines the integrity of the litigation process. While it is true that in an affidavit based jurisdiction such as the Family Court, even absent cross-examination, a party may challenge another party’s evidence, cross-examination still forms an essential component of the challenge of a case.
Accordingly, the presence of an effective scheme to provide for representation so that a litigant is not deprived of the ability to challenge by cross-examination also constitutes an important consideration, which effectively counteracts the above consideration.
Although the discretion must be considered on a case by case basis, it might be thought that the absence of an effective scheme would present as a considerable hurdle to the making of a discretionary order, due to its potential to undermine the fair hearing of the case by restraining a party from cross-examining the other party.
In this case, the Independent Children’s Lawyer, who is an officer of the Legal Aid Office of the ACT advised that there was uncertainty as to the funding of legal representation for the husband should an order be made. She advised that the previous allocation of funding had been exhausted and that the Legal Aid Office was waiting for advice as to whether further funding would be allocated.
This uncertainty points strongly against the exercise of the discretion.
It should be recognised that a fair hearing impacts not only on the parties but also, in a child related case, upon the children, as a fair hearing is a necessary prerequisite to a proper consideration of what is in the best interests of a child.
Further considerations for the exercise of the discretion may be derived from the mischief being remedied/purpose of the enactment. Accordingly, given that the wife, who alleges being the subject of family violence, is represented, the considerations relate to the prospects of her being re traumatised, and having her capacity to give clear evidence being compromised by being directly cross-examined by the alleged perpetrator of family violence.
The evidence as to the alleged family violence by the husband to the wife is sparse. The wife’s allegation, as against her, at its highest was contained at [14] of her trial affidavit:
There were other issues I don’t wish to elaborate in that added to the deterioration of the situation involving psychological/emotional manipulations and displays of violence that served the purpose of maintaining control over me and consolidating [the husband’s] position of power.
Accepting that, due to the dynamics of family violence, there may be personal and practical difficulties in identifying individual acts of family violence within an abusive relationship, the generality of the wife’s description deprives it of significant capacity to support the proposition that the wife would be at either risk of re-traumatisation, or suffer from a compromise of her capacity to give evidence.
There is, however, a second aspect of the case. The wife’s case involves the allegation that the husband has committed acts of indecency upon one of their children, an allegation supported by the criminal conviction of the husband for such acts of indecency. Acts of indecency upon a child constitute serious examples of family violence.
While it may be accepted that the husband’s alleged acts of indecency upon the daughter would likely be the source of trauma for the wife, and render personal cross-examination by the husband a difficult process, such an effect attracts lower weight where the focus of s 102NA is upon family violence occasioned by one party upon another. The family violence upon the daughter is unable to be characterised in such a manner. This does not necessarily render it as irrelevant, but impacts upon the weight to be assigned to it in the discretionary weighing up.
On balance, even if funding was assured, the discretion to impose the ban on personal cross-examination should not be exercised in this instance.
The situation, however, is that funding is not assured.
Even if the other factors had sufficiently pointed to the making of an order, the uncertainty as to funding would have been sufficient to decline to make the order. Shutting a litigant out from the cross-examination of the other party has the potential to undermine the integrity of proceedings that have, as their object, the making of an order in the best interests of a child. It is difficult to see factual circumstances arising where a court would entertain such an outcome.
Finally, it should be noted that where there is an allegation of family violence between the parties and a discretionary order is not made pursuant to s 102NA(1)(c)(iv), the Court will be required to put in place “appropriate protections” for cross-examination pursuant to s 102NB. The parties have not yet addressed the Court as to what these might be in this case. The parties will be given the opportunity to do so.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 January 2020.
Associate:
Date: 17 January 2020
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