Owen & Owen

Case [2020] FamCA 90

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
Unions NSW v New South Wales [2019] HCA 1
Work Health Authority v Outback Ballooning Pty Ltd (2019) 363 ALR 188

Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 9th ed, 2019
Legal and Constitution Affairs Legislation Committee, The Senate, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] (2018)
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

  1. The application to apply the provisions of s 102NA(2) to the hearing of this matter is refused.

  2. 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

  1. 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.

  2. Section 102NA…

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Owen & Owen [2020] FamCA 90
Case
[2020] FamCA 90
Decision Date

CaseChat Overview and Summary

In *Owen & Owen*, Gill J of the Family Court of Australia considered an application for a discretionary ban on personal cross-examination under section 102NA of the *Family Law Act 1975* (Cth). The dispute concerned the application of this provision in circumstances where the alleged violence was directed towards a child, rather than a party to the proceedings.

The central legal issue before the Court was whether to impose a ban on personal cross-examination under section 102NA(2) of the Act. This required the Court to consider the relevant factors for imposing such a ban, particularly in the context of violence against a child, and to assess the potential impact of imposing a ban on the fairness of the hearing and the Court's ability to determine the best interests of the child. The Court also had regard to the importance of legal representation and the uncertainty surrounding the availability of funding schemes for such representation.

Gill J reasoned that while section 102NA is designed to protect parties from the trauma of personal cross-examination, its application in this case, where the alleged violence was directed at a child, did not warrant a ban. The Court considered that imposing a ban could create an unfair hearing, particularly given the uncertainty surrounding legal representation funding, and could hinder the assessment of the child's best interests. The Court concluded that the application of section 102NA(2) was not appropriate in these circumstances.

Consequently, the Court refused the application to apply the provisions of section 102NA(2) to the hearing and adjourned the matter for further directions.

Orders

Orders of the court

1.

The application to apply the provisions of s 102NA(2) to the hearing of this matter is refused.

2.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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