Redford & Flannery
[2023] FedCFamC1F 567
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Redford & Flannery [2023] FedCFamC1F 567
File number(s): BRC 4308 of 2022 Judgment of: HOGAN J Date of judgment: 4 July 2023 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) Bill 2018
Cases cited: Hurley v Melton (No. 2) (2020) 61 Fam LR 405 Division: First Instance Number of paragraphs: 5 Date of hearing: 4 July 2023 Place: Brisbane Applicant: Litigant in person Counsel for the Respondent: Ms Pendergast Solicitor for the Respondent: Jellie McDonald Solicitor for the Independent Children's Lawyer: Ms Perkins, Wallace Perkins Family Law ORDERS
BRC 4308 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REDFORD
Applicant
AND: MR FLANNERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
4 JULY 2023
IT IS ORDERED 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 the father by the mother in these proceedings.
AND IT IS ORDERED BY CONSENT THAT:
2.The final hearing dates of 20 July 2023 and 21 July 2023 are vacated.
AND IT IS FURTHER ORDERED THAT:
3.The matter is now listed for final hearing for four (4) days before Justice Hogan commencing at 10.00 am on 16 October 2023, at the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.All parties attend the final hearing of this matter in person.
5.The matter is listed for a pre-trial Case Management Hearing at 9:15 am on 26 September 2023, with the hearing to be conducted by telephone.
6.The Applicant and Respondent are excused from attendance at the pre-trial Case Management Hearing referred to in Order 5 above, unless they are appearing as a litigant in person at the final hearing.
7.Orders 3 to 7 (inclusive) and Orders 9, 11 and 12 of the Orders made by consent on 17 April 2023 are discharged.
8.The Independent Children’s Lawyer has leave to inspect and copy the documents produced pursuant to subpoena and the legal representatives for the Applicant and Respondent have leave to inspect and copy the documents produced pursuant to subpoena.
9.By no later than 14 August 2023: the parties submit an agreed set of amended Trial Directions to the Court to facilitate the hearing listed to commence on 16 October 2023.
10.Any application for a witness to give evidence and be cross-examined by electronic means at the final hearing of this matter be listed to the pre-trial Case Management Hearing referred to in Order 5 above.
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 Applicant mother for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that:
(a)the matter is listed for final hearing for four (4) days commencing on 16 October 2023; and
(b)a pre-trial Case Management Hearing is listed for 9.15 am on 26 September 2023; and
(c)the parties are required to submit an agreed set of Trial Directions by no later than 14 August 2023.
C.The Court has today informed the parties that, in the event the matter does not conclude by 4.00 pm on Thursday, 19 October 2023, it is the Court’s intention to sit to conclude the matter on Friday, 20 October 2023.
D.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
E.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (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 Redford & Flannery has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I note that the Family Law Act 1975 (Cth) contains no statutory guidance about matters to be considered by a court in determining whether or not to make an order that the requirements of section 102NA(2) of the Act apply to the cross-examination referred to in section 102NA(1) of the Act. However, the purpose of the legislation by which sections 102NA and 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied that Bill[1]. The contents of that include the following:
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 Amendment (Family Violence and Cross-Examination of Parties) Bill 2018.
I have deliberately emphasised the word “alleged” in my recitation of that aspect of the Explanatory Memorandum given that, in this case, the parents are not in an agreement about the existence of family violence and it remains an issue in dispute. However, it is clear from reference to the terms that I have set out (taken from the Explanatory Memorandum) that that was also anticipated to be the case – otherwise the memorandum would not have used the word “alleged” in the manner that it did.
It is clear to me that the purpose of sections 102NA and 102NB might properly be regarded as protecting the integrity of the litigation process conducted in this Court by protecting against the potential that being cross-examined by an alleged perpetrator of family violence could affect an alleged victim’s ability to give clear evidence and also by protecting against the possibility that, by virtue of the impacts of alleged family violence, an alleged victim may not be able adequately to cross-examine the alleged perpetrator of the same.
I also refer to an earlier decision that I delivered, a matter of Hurley & Melton (No 2)[2] in which I set out a summary of cases decided by single judges, at least at that time, in which the issue of the manner of the exercise of the discretion was discussed.
[2] (2020) 61 Fam LR 405.
In this case, I am persuaded to exercise the discretion in favour of making the order I have outlined because of the submissions quite properly made by Ms Pendergast, who appears on behalf of the father, and Ms Perkins, the Independent Children’s Lawyer, and noting the contents of Dr B’s report also. I consider those to be sufficient for the order to be made.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 4 July 2023
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