Peng & Anh
[2023] FedCFamC1F 281
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peng & Anh [2023] FedCFamC1F 281
File number(s): SYC 2786 of 2020 Judgment of: CAMPTON J Date of judgment: 18 April 2023 Catchwords: FAMILY LAW PRACTICE AND PROCEDURE – Whether an order should be made pursuant to s 102NA of the Family Law Act 1975 (Cth) prohibiting the parties from personally cross-examining one another – Where the circumstances of the case do not attract mandatory application of the section – Where the applicant applies for a discretionary application of the section – Where both parties are legally represented – Where there is no evidence that the respondent intends to personally cross-examine the applicant – Application refused. Legislation: Family Law Act 1975 (Cth) ss 68B, 90SM, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10
Cases cited: Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 18 April 2023 Place: Sydney Solicitor for the Applicant: Ms Ng, Metta Legal Counsel for the Respondent: Mr Murray Solicitor for the Respondent: M G O’Callaghan & Associates ORDERS
SYC 2786 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PENG
Applicant
AND: MS ANH
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
18 APRIL 2023
THE COURT ORDERS THAT:
1.The Minute of Consent Order executed by the solicitors for each of the parties received by email to my chambers yesterday and dated 17 April 2023 shall be marked Exhibit 1.
2.The respondent’s Application in a Proceeding sealed on 13 April 2023 be dismissed.
3.By no later than 9.00 am on 19 April 2023, the applicant and respondent are to:
(a)Confer and file a joint balance sheet in compliance with Orders 7 – 10 made on 21 March 2023; and
(b)Each file a Case Outline document in compliance with Order 18 made on 21 March 2023.
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 Peng & Anh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By an Initiating Application filed on 7 May 2020 in what was then the Federal Circuit Court of Australia, Mr Peng (“the applicant”) commenced proceedings for the adjustment of property between he and Ms Anh (“the respondent”), pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The applicant and respondent commenced a relationship in 2009 and separated on a final basis in December 2019. They have two children together, X born in 2009 and Y born in 2014. The applicant has one child of a former relationship, who is now an adult.
Since separation the children have lived with the respondent. They have not spent time with the applicant since December 2019. On 14 January 2021, the applicant filed an Application in a Proceeding seeking orders permitting him to spend time with the children. The parenting aspect of the parties’ dispute has now been resolved by way of final consent orders made on 13 April 2023. Those final orders broadly provide for the children to continue to live with the respondent and spend professionally supervised time with the applicant on four occasions per year. Significantly, the orders do not contain any injunction by way of s 68B or s 114 of the Act restraining or prohibiting the conduct of the parties against one another or as directed to the children.
The property dispute remains listed for final trial before me over two days commencing tomorrow, 19 April 2023. That trial was set down on 21 March 2023, on which date a raft of trial directions were made, including:
15.Each party and the Independent Children’s Lawyer is to advise the Court forthwith upon becoming aware of any charge or conviction of a family violence offence, any family violence order (other than an interim order) currently in place, or any injunction under s 68B or s 114 of the Family law Act 1975 (Cth) with respect to the parties or child and advising that in those circumstances direct cross-examination of a party by a self-represented party may be prohibited pursuant to s 102NA of the Family law Act 1975 (Cth) and, further, that if either party becomes self-represented that they are to forthwith and within seven (7) days of their becoming aware of that circumstance file a Notice of Address for Service and advise chambers, in accordance with the protocol for communication with chambers, of that fact.
On 28 March 2023, the applicant’s solicitor wrote to my chambers with the consent of the respondent and the Independent Children’s Lawyer (“ICL”), seeking to exercise the liberty afforded pursuant to Order 15 above. I relisted the matter on 30 March 2023, on which date the applicant’s solicitor informed the Court that the applicant did not intend to continue to engage her services and would represent himself at the trial commencing on 19 April 2023. In those circumstances, I made an order on 30 March 2023 that:
1.In the event any party proposes to seek orders pursuant to s 102NA(3) of the Act, they are to file and serve an Application in a Proceeding identifying the relief sought and any affidavit material in support thereof on or before 12 April 2023.
…
4.In the event an Application in a Proceeding is filed pursuant to Order 1 herein, such Application in a Proceeding will be listed by Microsoft Teams at 9.30 am on 18 April 2023.
The respondent filed an Application in a Proceeding on 12 April 2023 (which was sealed the follow day) in compliance with Order 1 made on 30 March 2023, seeking an order be made under s 102NA of the Act prohibiting the applicant from personally cross-examining the respondent at the trial. The respondent did not explicitly seek an order that the trial listed to commence on 19 April 2023 be vacated. By way of Order 4 made on 30 March 2023, the respondent’s Application in a Proceedings was listed for hearing today, being the day prior to the trial.
In support of her Application in a Proceeding, the respondent filed an affidavit on 12 April 2023, in which she set out what she contended was the evidentiary basis for the making of an order under s 102NA of the Act. The applicant did not file a Response to the respondent’s Application in a Proceeding, nor did he file any affidavit directly in response to the application. The applicant’s solicitor advised that the applicant did “not oppose the s 102NA order being made on a without admissions basis”. She later said that the applicant consented to the order as sought.
On 17 April 2023, being two days prior to the first date of the trial event, the respondent submitted a Minute of Consent Orders by way of email to my chambers purportedly resolving the respondent’s Application in a Proceeding filed on 12 April 2023. The Minute was tendered and marked as Exhibit 1 in the proceedings before me today. The proposed orders were:
(a)An order to be made pursuant to s 102NA of the Act prohibiting the parties from personally cross-examining one another;
(b)The trial listed to commence on 19 and 20 April 2023 to be vacated and the trial directions requiring each of the parties to file material to be relied upon at trial to be discharged; and
(c)The matter to be listed for further trial management.
Significantly, the proposed Minute was executed by both the solicitor for the applicant and the solicitor for the respondent on the parties’ behalf.
Subsequent to the receipt of the proposed Minute, my chambers received a further email from the applicant’s solicitor confirming the applicant’s consent to the proposed Minute and requesting that orders be made in chambers in accordance with that proposed Minute and that the listing of the respondent’s Application in a Proceeding on 18 April 2023 be vacated.
The proceedings therefore came before me for consideration of the respondent’s Application in a Proceeding this morning by way of Microsoft Teams. Each of the applicant and respondent attended and were represented by their respective legal representatives.
At the hearing of the respondent’s Application in a Proceeding this morning, counsel for the respondent submitted that the applicant’s conduct towards the respondent during and after the relationship was not physically violent but was “insidious” in that her “will was overborne”. He said that the applicant was unable to “let go” of control of the respondent. He conceded that the last evidence of family violence occurred by way of a dispute between the parties as to which school the children would attend in 2021, and prior to that time, occurred on a holiday taken by the parties in late 2019 proximate to the date of separation.
Counsel for the respondent further submitted that if the applicant was to personally she “may” lose the opportunity to make adequate and proper responses in cross-examination and “may well” be significantly challenged in meeting the applicant’s case. It was submitted that she remains fearful of the applicant’s “overbearing personality”.
THE LAW
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:
102NA Mandatory protections for parties in certain cases
(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.
…
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
Section 102NA has mandatory application in those circumstances set out at subsection (1)(c)(i)–(iii), and discretionary application should the Court so elect to make an order as set out at subsection (1)(c)(iv). It is conceded by each of the parties that this case does not attract the mandatory application of s 102NA, and that the making of any order will be a discretionary exercise.
However, as was observed by Gill J in Owen & Owen (2020) 60 FamLR 334, regardless of whether the application is mandatory or discretionary, there are necessary preconditions that must be satisfied before an order pursuant to s 102NA is made. The first precondition is that a party to the proceedings intends to cross-examine another party to the proceedings (s 102NA(1)(a)). Plainly, this subsection relates to a party’s intention to personally cross-examine another party to the proceedings (that is, not by way of a legal representative).
In this instance, both parties are legally represented. The respondent’s current solicitors filed a Notice of Address for Service on her behalf on 22 July 2020 and have remained on the record since that time. It was not contended that her solicitors would not appear on her behalf at the trial.
The applicant has engaged his current solicitors since at least 15 March 2023, on which date they filed a Notice of Address for Service on his behalf. Although the applicant’s solicitor made some indication when the matter was before me on 30 March 2023 that the applicant may not continue to retain their services, those same solicitors remain on the record as at today’s date. The applicant’s solicitor prepared his material to be relied upon at the trial, including his Amended Initiating Application filed on 27 March 2023, and his affidavit, Financial Statement and Undertaking as to Disclosure each filed on 14 April 2023.
The applicant’s solicitor appeared on his behalf at today’s hearing and has not filed a Notice of Ceasing to Act pursuant to r 3.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). During the course of the hearing, she said that she had served such a document on the applicant and intended to withdraw from the record in due course. There was no evidence before me as to when such Notice had been served. The Notice itself had not been put into evidence.
Similarly, there is no evidence indicating that respondent is not in a position to continue to engage his current solicitors for the trial commencing tomorrow or that his solicitors are not available to accept that engagement. That proposition, if made, seems at odds with the fact of his current solicitors appearing on his behalf today. Further, the applicant’s Financial Statement filed on 14 April 2023 discloses that he works full-time as a professional, earning a gross weekly salary of $1,050. The applicant has not filed a Costs Notice in compliance with the Rules to indicate what his estimated further legal costs will be to the conclusion of the trial.
CONCLUSION
On the evidence before me, neither party will be required to personally cross-examine the other and will each be assisted by their legal representatives, who will be able to do so on their behalves should such cross-examination be required. In those circumstances, I am not satisfied the preconditions of s 102NA of the Act are met.
If I am in error in the above conclusion, I am still not satisfied that a discretionary order ought to be made pursuant to s 102NA of the Act, in circumstances where:
(a)The applicant has not advised the Court as to whether he requires the respondent for cross-examination, and there is no evidence that the applicant intends on conducting that cross-examination (if it is to occur at all) himself, nor is there evidence as to the scope of such cross-examination; and
(b)There was no evidence in the respondent’s case as to why alternate arrangements could not be made for the testing of her evidence by the applicant (if it is to be tested at all), including (by way of example) conducting cross-examination via video-link from a room in which the respondent is not physically present; and
(c)Insofar as the submission is made that the respondent shall be unfairly prejudiced at the trial should her application for a s 102NA order be refused, I am not satisfied that the evidence relied upon by the respondent is sufficient to establish that her capacity to give clear evidence will be compromised should she be cross-examined by the applicant.
Balancing the above considerations, I am satisfied that the respondent’s Application in a Proceeding filed on 12 April 2023 should be dismissed and that orders should not be made in accordance with the parties’ proposed Minute of Order dated 17 April 2023 (Exhibit 1).
The matter remains listed for final hearing as to the s 90SM dispute over two days commencing at 10.00 am tomorrow. The parties have each filed their affidavit evidence and Financial Statements to be relied upon at the trial. They have not yet filed Case Outlines or a joint balance sheet in accordance with the trial directions made on 21 March 2023. I will make a further order that they do so prior to the trial commencing tomorrow.
For all of the above reasons, I shall make the orders as set out at the forefront of these reasons.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 18 April 2023
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