Palmer & Palmer (No 2)
[2022] FedCFamC1F 398
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Palmer & Palmer (No 2) [2022] FedCFamC1F 398
File number: CAC 617 of 2021 Judgment of: GILL J Date of judgment: 1 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –
S 102NA – Discretionary ban on cross-examination conducted personally – Absent the ban potential compromise of the integrity of the proceedings and likely severely deleterious effect on the mother – Intervention by the NSW Department of Communities and Justice – Mother is self-represented, but seeking legal aid support – Where there are mutual allegations of family violence, most specifically experienced by the mother.Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 1 June 2022 Place: Canberra Solicitor for the Applicant: KPW Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Intervener: Crown Solicitors Office Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
CAC 617 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PALMER
Applicant
AND: MS PALMER
Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
1 JUNE 2022
THE COURT ORDERS THAT:
1.The requirements of s 102NA(2) Family Law Act 1975 (Cth)(“the Act”) are to apply to the cross-examination in this case, being that the examining party must not cross-examine the witness party personally, and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
IT IS NOTED THAT:
2.The mother has lodged a legal aid application and I have recommended to her that, notwithstanding the making of this order, that she pursue that legal aid application.
3.As an adjunct to the application of an s 102NA ban, that legal representation will be made available to the mother under the auspices of the Legal Aid Commission of New South Wales.
IT IS FURTHER ORDERED THAT:
4.It is directed that the venue for the conduct of the hearing of this matter will be the G City Court House, unless the Court otherwise directs.
5.It is directed that this is an in-person proceeding and the in-person attendance of the parties is required, subject to any application being made to excuse a party from attendance, or arrangements being made to permit a party to attend from another area of the court building, or otherwise by link.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Palmer & Palmer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:
This is a complex matter, with such complexity indicated by the presence of the intervener in the litigation. The matter is listed for final trial, commencing for a period of seven days on 1 August 2022. At present, the father is represented, but the mother is not. She informs me that she has made an application to the Legal Aid Commission, and lodged such on 30 May 2022, and provided all necessary documents to allow the application to be processed. I am informed by Ms H, who is the Practice Manager of the Legal Aid Commission Office in G City, that the application will be urgently processed within a period of approximately one to two weeks.
An issue has arisen as to whether or not the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) ought to be applied or do apply to this case. Having heard from the parties, I am satisfied that none of the mandatory applications of s 102NA as set out in paragraph 1(c), (ii) or (iii) apply to this case. An issue still remains as to whether or not a court should make an order that the requirements of s 102NA(2) apply to cross-examination in this case.
The reason why that matter arises is that there are allegations of mutual abuse, but specifically contained in the mother’s Notice of Child Abuse, Family Violence or Risk, filed on 8 September 2021, for allegations of verbal aggression and physical violence by the father upon the mother in 1999 and 2003. In 1999, the mother alleges that the father slammed a fridge door onto her hand causing bruising and swelling, and in 2003, that when the mother was pregnant with their child S, there was an argument in which the father threw the mother across the room onto the bed. These matters are untested allegations at this point.
I note that there is a more recent allegation of conflict between the parties, which has involved the removal of a car door from the father’s car, either by virtue of the door being slammed upon the mother, or the mother doing something to the door while the father was present in the car. Again, precisely what occurred is yet to be tested.
The Independent Children’s Lawyer (“the ICL”) has helpfully advised me of other issues that have been identified from her perusal of the subpoenaed material such that in 2003, there was an Apprehended Violence Order taken out by the police on behalf of the mother against the father. In November 2019, police records show a verbal dispute between the parents where it is alleged that the mother has pushed the father. On 4 June 2020, 27 March 2021, 11 June 2021 and 6 August 2021, the police records indicate verbal disputes occurring between the parties, requiring their attendance.
Additionally, the mother alleges more generalised violence by the father in terms of the father acting in a controlling manner of her in respect of the conduct of the relationship by restraining her from being able to pursue relationships outside the relationship, by controlling her access to finances and by acting in a controlling manner sexually towards the mother, causing her to engage in sexual activity with the father. Again, these matters are untested allegations at the moment, but that is all that is required in respect of the application of s 102NA, or at least required to found a consideration of the discretion under that provision.
The mother has represented to me today in response to a query as to how these matters might affect her capacity to question the father face-to-face in court or how they may impact upon her should she be required to do so. She has responded that she does not believe that she would be able to question the father, thinking about it at this point. It may be observed that, at that point in the proceedings, the mother broke down emotionally. The mother considers that she would be nervous at the prospect of even coming across the father, explaining that she has a fear of coming into contact with him when she is collecting one of the children from school at Suburb T, and hates the prospect of coming into contact with him. She does not think that she would be able to deal with him face-to-face and says that she does not think that she would be able to be in the same area as him, even if she were not required to ask him questions. When queried as to why in particular she would find it hard, she asserts that she remembers everything rushing back and becoming/or being overwhelmed. As noted, these are as yet untested matters that appear to be likely to form part of the basis of litigation between the parties.
The matters recited by the mother are such to cause me to come to the view that the integrity of the proceedings would be compromised should the mother be in a position where she is required to directly question the father. It appears unlikely, by virtue of the history that is recited between the parties, that she would be able to cross-examine him in a manner that would be useful for establishing the matters required to be established to determine what is in the children’s best interests. That is, there will be a compromise of the evidence that would be before the Court.
Importantly, it may also be observed that the actual conduct of the proceedings are likely to have a severely deleterious effect upon the mother personally. Those two matters speak loudly in favour of a discretionary ban being imposed pursuant to s 102NA. It should be noted that the imposition of such a ban is not opposed by any of the other litigants.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 1 June 2022
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