Penwick & Wogan
[2022] FedCFamC2F 1293
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Penwick & Wogan [2022] FedCFamC2F 1293
File number(s): ADC 4997 of 2020 Judgment of: JUDGE BROWN Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons – parenting – application of s 102NA of the Family Law Act 1975 – mother’s solicitor seek order under s 102NA to fund trial – father is in receipt of legal aid – court has discretion to make such order – proceedings have been listed for trial – allegations of family violence – where order banning personal cross-examination of parties is made Legislation: Family Law Act 1975 (Cth), Div 4, Pt VII, ss 4AB, 13C, 60CC, 68B, 102NA, 114 Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 15 September 2022 Place: Adelaide Solicitor for the Applicant: Stevens Law Solicitor for the Respondent: Pascale Legal Barristers & Solicitors Counsel for the Independent Children's Lawyer: Ms Lee Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
Table of Corrections 7 October 2022 In paragraph 22 the word ‘trying’ has been amended to ‘trial’ ORDERS
ADC 4997 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PENWICK
Applicant
AND: MR WOGAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
15 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s102NA(1)(c)(iv) of the Family Law Act 1975, the parties in this matter are restrained from cross-examining the other party directly or personally other than through a legal practitioner acting on their behalf.
2.The Trial dates of 30 November 2022, 1 & 2 December 2022 are confirmed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected in respect of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This morning I have a matter before me, in which the parties are Ms Penwick[1] and Mr Wogan.[2] The proceedings to relate to care arrangements for the parties' children, X, born 2017 and Y, born 2019.
[1] Hereinafter referred to as “Ms Penwick” or “the mother”.
[2] Hereinafter referred to as “Mr Wogan” or “the father”.
BACKGROUND
The proceedings were commenced by Ms Penwick on 16 October 2020. At that stage, on a final basis, she sought that she should have sole parental responsibility for X and Y and that the children should live with her. She had no proposal as to what time the children should spend with their father, other than as it should be as deemed appropriate by the court.
Mr Wogan responded to this application on 2 November 2020. He seeks on a final basis that the parties should equally care for the children, presumably on a week-about basis. In addition, on an interim basis, he sought that the mother should undergo a psychiatric assessment. Necessarily, the underpinning of this order being that it is Mr Wogan’s perception that Ms Penwick suffers from mental health issues, which impacted upon her parenting capacity.
Accordingly, it is hard to think of a situation in which the positions of the parents could not be more polarised. In this context, issues have arisen regarding the management of a final hearing which is imminent and whether, in the event one of the parties is unrepresented direct cross examination should be permitted. The resolution of this issue has implications for the application of the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
The proceedings have been managed primarily by the Senior Judicial Registrar of this court based in Adelaide. The proceedings first came before the court of 26 October 2020. On that occasion an order was made that the father deliver the children to the mother at the Suburb B Police Station, and if he did not do so, that there would be a recovery order. Accordingly, on any view, there is a significant level of conflict and controversy between the parties, necessitating a significant involvement of the court at an early stage of proceedings.
The next step in the proceedings was an order for supervised time between the father and the children at a children's contact centre. Thereafter, various documents have been provided by the state-based authorities, on the direction of the court, via the SAPOL and DCP embedded workers. This is indicative of the fact that the court considered there were significant issues of child protection potentially arising in the case on account of the affidavit material filed to date.
On 22 March 2021, the Senior Judicial Registrar made an order that the father undergo a men's behavioural change program at C Family Services or D Family Services. Other orders were made by the Senior Judicial Registrar in June of 2021. The parties were each restrained from exposing the children to drug paraphernalia; being in contact with their children whilst under the influence of illicit substances; consuming alcohol and exposing the children to family violence. A further interim hearing was appointed.
In the early part of this year, the parties were directed to attend an intense process of Family Dispute Resolution pursuant to section 13C of the Family Law Act 1975 (Cth)[3]. That appears not to have assist them to resolve the dispute between them. Thereafter, at the interim hearing of 25 August 2021, the father began to spend more extended time with the children, subject to the supervision of a relative of his, Mr E. Handovers of the children were either to occur at the F Contact Centre or at the Suburb G Police Station. Again, that is clearly indicative of a significant level of conflict between the parties.
[3] Hereinafter referred to as “the Act”.
THE FAMILY REPORT
The last significant matter of note is that a Family Report was ordered, and that was released to the parties on 5 May 2022. It was prepared by Ms H, who is an experienced psychologist who has provided many reports to the Court.
Ms H recommended that Ms Penwick was to have the primary care of the children, but she was to consult with Mr Wogan in respect of some specified significant issues. It was also recommended that Mr Wogan spend time with the children on alternate weekends for up to four hours per day on Saturday and Sunday. Handovers were to continue to be public and Ms Penwick was to be encouraged to continuing with counselling to ensure her mental health issues remained stable.
Ms H noted, and it is a significant matter in respect of the current application, that there are no child protection or family violence orders in this matter. The report is a detailed one. Under the heading Adult Relationships, Ms H explored what each of the parties told her about the nature of their relationship together. The parties met in 2015/2016, when they were each teenagers. Ms Penwick was 15; Mr Wogan was 18.
It is the effect of Ms H's report that Ms Penwick reported to her that Mr Wogan's behaviour towards her began to change when she fell pregnant. She alleges that Mr Wogan attempted to alienate her from friends and would yell at her and abuse her.
Essentially, it is her case that Mr Wogan attempted to, in the jargon, gaslight her, but also assaulted her from time to time. It is her evidence that members of Mr Wogan's family were aware that she was being subject to incidents of physical violence, including one involving an assault that caused her to sustain a gash.
Ms H reports that Ms Penwick said to her that the violence would occur often and could be every second day for two weeks then stop for a month. In discussing why she initially did not seek help, Ms Penwick explained that at the time she was completely dependent on Mr Wogan, was living with him and had nowhere to go. She further noted that she was too ashamed to tell her family and did not want to acknowledge what was happening.
Mr Wogan also gave his account. He said that, in effect, that Ms Penwick was the reactive and abusive person in the relationship, which he attributes to her mental health issues. He alleges that Ms Penwick, in fact, hit him after she stole his phone and went through his messages, trashed his room, took his Xbox and so on and so forth. To Ms H, Mr Wogan expressed confusion about why the parents could not co-parent, indicating that he was happy to work with Ms Penwick. In effect, it is his view that Ms Penwick is malicious and manipulative.
Clearly there are, from both parties’ perspective’ issues of family violence in the case, with Ms Penwick, in effect, saying that she did not seek intervention from the police or go ahead with an interim family violence order, because she was either intimidated or hoped that if she did not proceed with such applications, things would get better.
LEGAL PRINCIPLES
At this juncture, I am not determining these significant evidentiary issues between the parties. That will occur in the context of a trial, which has been scheduled to take place in the latter part of this year on 30 November 2022 and 1 and 2 December 2022.
Today, what I am called upon to deal with is the application of section 102NA of the Family Law Act to these proceedings. That section appears in Division 4 of the Act under the heading Cross-examination of parties where allegations of family violence. The relevant section reads:
(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.
In effect, what subsection 2 requires that where section 102NA(1) applies, the examining party must not cross-examine the witness party personally and such cross-examination must be conducted by a legal practitioner.
In this case, neither party has been convicted of an offence of violence involving the other party. There is not a final family violence order and there is not a specific injunction under section 68B or section 114 of the Act. Accordingly, I must make a specific order that restrains the parties from cross-examining the other. A note to the section reads as follows:
This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
DISCUSSION
In this case, it matters not who is the perpetrator or the victim of the violence concerned. Having read Ms H's report, which I acknowledge is untested, it is obviously the case that this is a case about family violence, although the parties have polarised views about that. Mr Wogan has Legal Aid for the trial. That was approved very recently. The Independent Children's Lawyer will almost certainly get funding for the trial.
The irony is that Ms Penwick is not funded. I know very little about her financial circumstances, other than she has deposed in her initial affidavit that she was engaged in home duties. Ms Dansie, her solicitor, has said that if Ms Penwick does not get Legal Aid, she will not be represented at the trial.
One of the central features of family violence about which I must be aware is that it invariably occurs between people who share a domestic relationship and, as a consequence, it occurs behind closed doors and is not subject to obvious scrutiny by outside sources. In addition, its victims and indeed its protagonists are ashamed, embarrassed or fearful to tell others about it. So it is not necessarily the case that there will be police charges or that a person will seek out an injunction from the police or from the court to protect him or her, but issues of family violence remain significant in the case concerned.
Indeed, the structure of the Family Law Act as it pertains to children in Part VII prioritises the need to protect children from suffering the physical and psychological harm of being exposed to family violence or neglect. That is one of the primary considerations under section 60CC, which are the matters which the court which must take into account in ensuring that whatever order it makes will be in the best interests of the child or children concerned.
As I indicated, that consideration has greater weight than the consideration relating to a child having a meaningful level of relationship with each of his or her parents. So family violence is significant and the Court has recognised in the provision contained in 102NA that litigation can also be used as a means of coercive and control over another family member.
In all these considerations, I bear in mind the definition of "family violence" contained in section 4AB. It is behaviour which is violent, threatening of another family member that coerces or controls a member of that person's family or causes that family member to be fearful.
Ms Dansie has submitted that her client is fearful of Mr Wogan. Whether that is so or not, I do not know. That will be an issue for the final hearing. Given what Ms Penwick has reported to the family report writer and, indeed, what Mr Wogan has also reported to her, it seems to me, given the overall import of section 102NA, to be inappropriate that Ms Penwick should be called upon to cross-examine Mr Wogan directly.
Section 102NA is a comparatively recent section. It places a further burden on the court to determine, in the absence of specific final family violence orders or injunctions for the personal protection of a party, whether a person should be prohibited from cross examining directly a former spouse. In this context, it is of some significance that the court’s discretion, in this regard, has fiscal implications for the public purse.
I am acutely aware of the possibility of the provision being open to manipulation and abuse. Such abuse may result in the exhaustion of the monies put aside to fund the scheme and so individuals who are entitled to the relevant funding being denied it because of other less deserving applications.
However, at the same time, the court has an obligation to recognise the importance the relevant legislation places on the court taking a proactive role in respect of family violence, including in the court context. For these reasons, I will order that these reasons be transcribed and provided to the parties.
For all of these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 28 September 2022
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