Peynirci & Agani
[2024] FedCFamC1F 27
•25 January 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Peynirci & Agani [2024] FedCFamC1F 27
File number(s): BRC 1479 of 2022 Judgment of: HOGAN J Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ordered to apply Legislation: Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth)
Cases cited: Hurley v Melton (No 2) (2020) 61 Fam LR 405; [2020] FamCA 917 Division: First Instance Number of paragraphs: 4 Date of hearing: 25 January 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: M.A. Kent & Associates Solicitor for the Independent Children's Lawyer: VM Family Law ORDERS
BRC 1479 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEYNIRCI
Applicant
AND: MS AGANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.
2.The Independent Children’s Lawyer has leave for Ms B, Court Child Expert, to give evidence and be cross-examined by video-link through Microsoft Teams at the final hearing of this matter.
3.Such leave is conditional upon Ms B being informed that she is:
(a)to be in a private place when she is called to give evidence; and
(b)to have with her a copy of her affidavit/s or report/s; and
(c)to have with her any notes that maybe in her possession that relate to the proceedings; and
(d)have available to her a method by which she can receive, electronically, any documentation that any party may wish her to be shown during the course of cross-examination.
4.The time for compliance with Order 8 of the Order made on 30 November 2023 is extended such that by 4.00 pm on 9 February 2024, each party file and serve any affidavit material on which they intend to rely at the final hearing.
5.The matter is listed for a pre-trial case management hearing at 9:15 am on 20 February 2024, with the hearing to be conducted by telephone.
IT IS NOTED THAT:
A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies, the Court has today advised the parties that:
(i)pursuant to those requirements, neither party may cross-examine the other party personally; and
(ii)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party; and
(iii)they are able to apply to the Commonwealth Family Violence and Cross‑Examination of Parties Scheme for the provision of a lawyer by completing an application form available by accessing …@...; and
(iv)a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said Scheme in Queensland.
B.The Court respectfully requests that Legal Aid Queensland accord any Application submitted by the parties for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the matter is listed for a final hearing for five (5) days commencing on 4 March 2024.
C.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
D.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Peynirci & Agani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
The Court may of its own initiative[1] make an order under s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”). Whilst the Act contains no statutory guidance about the matters to be considered by the Court in determining whether or not to make such an order (namely, that the requirements of s 102NA(2) of the Act apply to the cross-examination) the purpose of the legislation by which s 102NA and s 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied the Bill[2]. The contents of that document included that:
Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to personally cross-examine their alleged perpetrator due to the power imbalances created by family violence.
[1] Family Law Act 1975 (Cth), s 102NA(3)(a).
[2] Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018.
I consider, as I have previously expressed in cases such as Hurley & Melton (No 2)[3] at [24] and [2], that the purpose of s 102NA should be regarded as protecting the integrity of the litigation process by protecting against:
(a)the potential that being cross-examined by an alleged perpetrator of family violence can affect an alleged victim’s ability to give clear evidence; and
(b)the possibility that, by virtue of the impacts of the alleged family violence, an alleged victim may not be able adequately to cross-examine the alleged perpetrator.
[3] (2020) 61 Fam LR 405.
Noting the purpose of s 102NA as I have just discussed it, I consider it appropriate to exercise the broad discretion afforded to judges at first instance, in determining whether or not to make an order that the requirements of s 102NA(2) of the Act are to apply to the cross-examination in this proceeding in the upcoming trial, in favour of making an order in such terms. I do so having regard to the contents of the Child Impact Report dated 4 July 2022 (particularly at paragraphs 25, 27 to 30 inclusive and paragraph 44 of the same) and to the Family Report prepared by Ms B dated 12 January 2023 – particularly at paragraphs 11, 16, 20, 23, 27 and the recommendation particularised at paragraph 106 of the same, noting that, in this case, there appears to be allegation and counter-allegation of significant family violence alleged by each of the parents in this case to have been perpetrated by the other against them.
For those short reasons, then – which I consider sufficient in circumstances where the application is not opposed by the mother and is supported by both the father and the Independent Children's Lawyer – the orders will be made in my standard terms in relation to the application of s 102NA(2) of the Act.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 25 January 2024
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