Owen & Owen

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.