Ritchie & Ritchie
[2022] FedCFamC1F 922
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ritchie & Ritchie [2022] FedCFamC1F 922
File number(s): BRC 17822 of 2020 Judgment of: HOGAN J Date of judgment: 23 November 2022 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) Cases cited: Hurley v Melton (No 2) (2020) 61 Fam LR 405; [2020] FamCA 917 Division: First Instance Number of paragraphs: 18 Date of hearing: 23 November 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Ms Eastwood, Genuine Legal Solicitor for the Independent Children's Lawyer: Ms Stewart, Stewart Family Law ORDERS
BRC 17822 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RITCHIE
Applicant
AND: MS RITCHIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
23 NOVEMBER 2022
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 each of the parties in these proceedings.
NOTATION
A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination in the proceedings, 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.
IT IS NOTED:
B.The Court respectfully requests that Legal Aid Queensland accord any Application submitted by the Applicant father 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 three (3) days commencing on 15 March 2023 and a compliance hearing on 10 February 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 Ritchie & Ritchie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
The current proceedings involving competing applications for parenting orders are listed for trial before me in March 2023. There is already listed a compliance hearing date on 10 February 2023.
As a result of the Judicial Registrar who made the Directions setting the matter for trial reviewing the proceedings, it was raised with me whether I should consider whether the circumstances in this case are such as to cause the Court properly to consider whether s 102NA of the Family Law Act 1975 (Cth) applies; in a sense, whether to make an order pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) that the requirements of subsection (2) are to apply to the cross-examination. The requirements of subsection (2) of s 102NA provide that an examining party must not cross-examine a witness personally; and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
Mr Ritchie appears in person today. The mother and the Independent Children's Lawyer appear via legal representation.
After I provided Mr Ritchie with an overview of the matters relevant to my consideration of the issue before me this morning, he sought and was granted the opportunity to speak with the duty solicitor.
Having taken that advice, Mr Ritchie’s submissions, in essence, supported the Court exercising the discretion to make an order under s 102NA(1)(c)(iv) of the Act that the requirements of subsection (2) apply to his intended cross-examination of the mother in the case. He did so, in summary, for the following reasons.
Given:
(a)the nature of the allegations; and
(b)that they had been raised in the Hague Convention proceedings previously involving the parties; and
(c)that the mother had made allegations of family violence in the current proceedings; and
(d)that the mother had made an application in the Magistrates Court for the making of a protection order that, to use his phraseology, had to be defended
then those matters taken together would satisfy the Court that it is appropriate to make the order that the requirements of subsection (2) of section 102NA of the Act apply.
Ms Eastwood, who appeared for the mother, supported the making of the order. In addition to the submissions made by Mr Ritchie, which she adopted in a sense, she also submitted that the Court would take into account that the application for a protection order previously brought by the mother was resolved by the making of an undertaking by the father. It appears that that reference to an undertaking is a reference to an undertaking proffered on 18 March 2021 by which Mr Ritchie undertook not to commit domestic violence against the mother and to be of good behaviour towards her.
Ms Stewart, the Independent Children's Lawyer, does not oppose the making of the order, given that each of the parents supports the same. In essence, her submission is that, given the Act imposes on the Court a discretion about whether to make an order that the requirements of s 102NA(2) of the Act apply, it was a matter for the Court to determine.
I rely on Hurley & Melton(No 2)[1] for its summary of other decisions made by judges at first instance in determining applications such as this (noting in this case that the application was, in a sense, brought by the Court itself, albeit that it appeared from submissions made by Mr Ritchie that the parties had turned their mind to the same).
[1] (2020) 61 Fam LR 405.
As I said there, 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 s 102NA(2) apply to the cross-examination referred to in s 102NA(1) of the Act. However, the purpose of the legislation by which s 102NA and s 102NB of the Act were introduced into the Family Law Act 1975 (Cth) is made clear by the Explanatory Memorandum which accompanied that bill. The contents of this include 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.
In this case, I note, as I did during discourse with the legal representatives, that each of the parents have filed a Notice of Child Abuse, Family Violence or Risk in which they have asserted that each of them and the child have experienced family violence and that they each and the child are at risk of experiencing family violence. Each makes the allegation in their respective Notices of Child Abuse, Family Violence or Risk that the child has suffered, or is at risk of suffering, serious psychological harm from experiencing family violence, directly or indirectly.
The purpose of s 102NA and s 102NB of the Act might well be regarded as protecting the integrity of the litigation process by protecting against the potential that being cross-examined by a perpetrator of family violence can affect a victim’s ability to give clear evidence and also protecting against the possibility that, by virtue of the impacts of family violence, a victim may not be able to cross-examine the perpetrator.
As I have already noted, each of the parents in this case asserts that they are the victim of family violence.
I do not intend to recite the authorities which I set out in Hurley & Melton (No 2), but I take them into account in my consideration of the current proceeding.
Whilst some may consider that the absence of a protection order (the final order referred to in paragraph 102NA(1)(c)(ii)) is particularly relevant, it seems to me that the existence of the undertaking to resolve the proceedings is equally relevant. I accept the submissions made jointly in a sense by Mr Ritchie and Ms Eastwood on behalf of the mother in support of the exercise of the discretion in favour of making an order that the requirements of subsection (2) of s 102NA of the Family Law Act 1975 (Cth) apply. In particular, I take into account the fact that the allegations of family violence have been made in the Hague Convention proceedings in which the parents participated, have been made in the proceedings in this Court and have been made in proceedings in the Queensland Magistrates Court in support of an application for a protection order, which application was resolved by the proffering and acceptance of the undertaking to which I have referred.
All of those matters combine to persuade me, on balance, that it is appropriate in this case to make an order that the requirements of s 102NA(2) apply to the cross-examination.
Given that conclusion, it is, I think, also appropriate that I include in the order various notations to assist, in particular Mr Ritchie, who is, as I have said, at this stage self-represented, to access the Scheme administered by Legal Aid Queensland and funded by the Commonwealth. So the notations to the order will be in the form of my standard notations in that respect.
It also seems appropriate that I include a notation respectfully requesting that Legal Aid Queensland accord any application submitted by Mr Ritchie 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 trial to commence on 15 March 2023 and that it is listed for a compliance hearing before myself on 10 February 2023.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 25 November 2022
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