Paglia & Wayson

[2024] FedCFamC2F 883

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Paglia & Wayson [2024] FedCFamC2F 883  

File number(s):	MLC 7880 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 June 2024
Catchwords:	FAMILY LAW – property – application for section 102NA order – both parties allege family violence by the other – fourth branch of third limb of section 102NA satisfied – trial adjourned to allow parties to apply to section 102NA scheme.
Legislation:	Family Law Act 1975 (Cth) s 102NA
Division:	Division 2 Family Law
Number of paragraphs:	10
Date of hearing:	17 June 2024
Place:	Melbourne
Solicitor for the Applicant:	In Person
Solicitor for the Respondent:	No Appearance

ORDERS

MLC 7880 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PAGLIA

Applicant

AND:

MS WAYSON

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 JUNE 2024

THE COURT ORDERS THAT:

1.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Father and the Mother must not cross examine the other personally.

2.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to both parties under the Commonwealth Family Violence and Cross Examination of Parties Scheme.

3.For the purpose of order 1 hereof, both parties do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.

4.The Final Hearing listed before Judge O'Shannessy on 28 June 2024 be and is vacated.

5.The matter be adjourned to 18 October 2024 for Final Hearing (for an estimated 1 day).

6.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.

AND THE COURT NOTES THAT:

A.The relevant application referred to in order 3 hereof is available to the parties at in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE O’SHANNESSY:

1. These are the settled reasons of a judgment delivered ex tempore.  These reasons were delivered orally.  These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read.  The substance is unchanged.

2. In the matter of Paglia & Wayson, I have called an urgent mention after Chambers received numerous emails and notification from the applicant husband, Mr Paglia (‘the Husband’), requesting there be a section 102NA order of the Family Law Act 1975 (Cth) (‘the Act’) made prior to the Final Hearing listed on 28 June 2024 due to concerns of the alleged violence against him by the respondent wife, Ms Wayson (‘the Wife’).

3. Due to the short notice of the mention being called, the hearing proceeded via Microsoft Teams, where the Husband appeared electronically, however the Wife was unable to attend due to working commitments, which was communicated to Chambers prior to the hearing.  I am satisfied that she has the opportunity to participate in the hearing, but felt unable to do so because of her work.

4. The long and short of it is, I am going to make an order pursuant to section 102NA of the Act prohibiting the Husband in this matter from cross-examining the Wife and prohibiting her from cross-examining him. I will also make an order that they each apply to Legal Aid Victoria to obtain representation pursuant to the section 102NA Family Violence and Cross-Examination of Parties Scheme. The parties are still at liberty to get a lawyer themselves and pay for it, but if the choice is between representing and cross-examining, yourself, and having a Legal Aid lawyer do it, then it can only be done by a Legal Aid lawyer. That will necessitate a vacation of the trial and that is going to be re-fixed for 18 October 2024.

5. Section 102NA of the Act provides:

   (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.

   (emphasis added)

6. I will ask the Wife to advise me with a document from the Court of whether or not she was convicted of any criminal offence of assault after she was charged.

7. The problem and the other side of the coin is, what happens, particularly to women who are subject to family violence, after going to the police, they are then intimidated by the assailant or family members.  A whole range of other things come to operate, and they then ask the police not to proceed.  The Wife says she was not convicted, but she does not provide evidence of that, so I am still going to ask her if she can get something from the Court.

8. The Husband told me this day that each of himself and the Wife would likely feel intimidated if they were to cross-examine the other.  In the circumstances of the alleged frequent assaults by both parties, and the Husband said to be suffering from post-traumatic stress disorder, I am satisfied that the fourth branch of the third limb is satisfied, that I should make that order, and the matter will be adjourned to [18 October 2024][1]. 

   [1] Original transcript was ‘to a date to be fixed’

9. This judgment will be sent to the parties so that there is a record of why the order has been made, because I am expending public money, and I am quite mean with it and there has got to be a good reason why I would expend public money on representation of parties in financial proceedings.

   Conclusion

10. The circumstances of allegations of significant assaults, one against the other, and one party alleged to be suffering post-traumatic stress disorder satisfies me that a section 102NA order should be made. I will also order the vacation of the trial. The parties will get an email that will have an application form for the section 102NA scheme.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       9 July 2024