Sparks & Powers
[2023] FedCFamC2F 1383
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sparks & Powers [2023] FedCFamC2F 1383
File number: CRC 141 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 16 October 2023 Catchwords: FAMILY LAW – Application for review of orders of Senior Judicial Registrar (‘SJR’) – where SJR made order banning cross-examination because the father had been convicted or charged with an offence involving violence – where the father contended the acts giving rise to the breach of an Apprehended Domestic Violence Order were not ‘violent’ – where section 102NA(1)(c)(i) does not refer to ‘family violence’ but ‘violence’ – meaning of ‘violence’ considered – HELD father’s acts fell within the definition of ‘violence’ – application for review dismissed. Legislation: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 14, 14(4).
Family Law Act 1975 (Cth) ss 4AB, 68B, 102NA, 102NA(1)(c), 102NA(1)(c)(i), 102NA(1)(c)(iii), 102NA(1)(c)(iv), 102NA(2), 102NB,114.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07.
Cases cited: Hurley & Melton(No 2) (2020) 61 Fam LR 405
Owen & Owen (2020) 60 Fam LR 334
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 16 October 2023 Place: Melbourne Advocate for the Applicant: In Person Solicitor for the Applicant: None Counsel for the Respondent: Mr Rice Solicitor for the Respondent: Rice More & Gibson Solicitors ORDERS
CRC 141 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SPARKS
Applicant
AND: MS POWERS
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application for Review filed 4 October 2023 be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
JUDGE BLAKE:
This is an application by the father that arises in the context of contravention proceedings concerning two children: X, born in 2012, aged eleven, and Y, born in 2015, aged eight.
The father seeks to review orders made by a Senior Judicial Registrar on 20 September 2023.
On 20 September 2023, a Senior Judicial Registrar determined that the requirements of section 102NA(2) of the Family Law Act 1975 (Cth) (‘Act’) apply to any cross-examination occurring in the proceedings. In the notations to the orders of 20 September 2023, the Senior Judicial Registrar explained that neither party may cross-examine the other personally, that cross-examination may only occur by a legal practitioner acting on behalf of the party, and that affected parties could apply for representation through the relevant scheme. By his application, the father seeks the discharge of these orders.
The father made brief submissions in respect of the orders he sought, and relied on his outline of case filed 12 October 2023. The solicitor for the mother made even briefer submissions, and relied on a very brief outline of case dated 16 October 2023.
BACKGROUND
The father filed an affidavit in respect of the contravention application made in this Court on 30 January 2023. In that affidavit, among other things, he:
(a)stated that he is employed as a professional, and that he has no idea why the mother has stopped his time with the children;
(b)says that the mother has maintained a baseless, and fake narrative that the relationship was one of violence, and abuse, and that it is simply not true;
(c)stated that the mother made false statements that underpinned Apprehended Domestic Violence Orders (‘ADVO’) that were made against him;
(d)attaches an affidavit he swore in relation to an earlier set of proceedings on 7 June 2016;
(e)says that while there have been two police applications for ADVO’s, there has never been a charge against him by police arising from a violence offence; and
(f)that the children were removed from an ADVO in 2022.
The father’s affidavit of 7 June 2016 provides the following details regarding the ADVO’s:
(a)he was issued with a provisional AVO on around late 2015 after he refused to leave the family home;
(b)in early 2016, he rang the mother asking for time with the children. He was subsequently issued with a court attendance notice for breach of the AVO;
(c)on around early 2016, he attended court where he pleaded guilty to an offence, and was issued with a bond;
(d)in early 2016, he called the mother. He was subsequently charged in early 2016 with a breach of the AVO for this call;
(e)in early 2016, he went to the family home. He was subsequently charged for a breach of the AVO for going to the family home;
(f)in early 2016, he sent a text to the mother asking to speak with the children. He was subsequently charged with breaching the AVO for this text. He was arrested, taken to the police station, and served with a court attendance notice; and
(g)in mid-2016, he pleaded guilty to all three breaches of the AVO as charged, and was given a section 10 bond. The AVO was also made final at that time.
I note there is not currently a final ADVO in place. No party contended that there was an injunction issued under section 68B, or section 114 of the Act that was operative in the circumstances.
LEGAL PRINCIPLES
This being a review of a decision of the SJR, I am required by rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to conduct the review as an original hearing.
The terms of section 102NA are well known, and provide 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.
Note 1: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.
Note 2:This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3:To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(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.
I note that Family violence is defined in section 4AB of the Act, and provides as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 102NA of the Act has mandatory application in certain circumstances, and a discretionary application in others. There are preconditions that apply to the application of the provision. The first is that a party intends to cross-examine another party. The second is that there is an allegation of family violence between the examining party, and the witness party.
Once these two preconditions are met, the restrictions as to cross-examination in subsection (2) of section 102NA become applicable, provided one of the conditions set out in subsection (1)(c) are met. If the requirements set out in subsections (1)(c)(i) to (iii) are met, the ban on cross-examination comes into force automatically by operation of the Act. If the requirements referred to in subsections (1)(c)(i) to (iii) are not satisfied, the Court nevertheless has a discretion in subsection (1)(c)(iv) to make an order banning cross-examination. While the discretion is evident from the terms of the Act, the Act itself is silent as to the considerations that are to govern the exercise of that discretion.
There are now many decisions of both divisions of this Court dealing with the application of section 102NA to proceedings. In Hurley & Melton(No 2) 61 (2020) Fam LR 405, Hogan J at [24]-[39] undertook a useful review of the authorities as they then stood. In summarising those authorities, Hogan J noted, among other things, that orders under 102NA(2) had been made in circumstances where there were no operative family violence orders, but significant allegations of family violence had been made, at paragraph [31], and where previously made domestic violence orders had expired, at paragraph [34].
Prior to summarising those cases, Hogan J had set out the purpose of section 102NA at paragraphs [24]-[25] as follows:
[24]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 ss 102NA and 102NB of the Act were introduced into the Act is made clear by the Explanatory Memorandum which accompanied that Bill. The contents of the same 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.
[25]That is, the purpose of the sections might 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 adequately to cross-examine the perpetrator.
CONSIDERATION
While I accept the provisions above, I note that cross-examination is regarded as a fundamental right in Australian courts. I have therefore given very close consideration to the father’s application in the present case.
In the present matter, the father has indicated he wishes to personally cross-examine the mother. The first precondition contained within subsection (1) of section 102NA is therefore satisfied.
I note that I asked the father why it was necessary for him to personally cross-examine the mother, given he could engage representation, or could apply for representation through the cross-examination scheme. His answer was that he would be prejudiced. He said he could do the job better. Other than these general, and non-specific statements, he failed to specify with any precision why he needed to personally conduct the cross-examination.
The second precondition is that there is an allegation of family violence between the examining party, and the witness party. The father accepted there were allegations of family violence that arose in the matter. His contention was, however, that the allegations were baseless. He submitted, in effect, that in order for the precondition to be enlivened under subsection (1)(b), the allegations must have a proper basis. He said there was no proper basis for the wife’s allegations.
I am unable to accept the submission that there needs to be a proper basis for allegations of family violence in order for subsection (1)(b) to be satisfied. The Act makes no express reference to a need for there to be a proper basis for the allegations. In advancing that construction of subsection (1)(b), the father did not point to any textual support for the interpretation he advanced arising from the Act. Such a construction of the term, ‘allegation’, as advanced by the father is at odds with the ordinary meaning of the word, ‘allegation’, which the Macquarie Dictionary defines as follows:
1.a mere assertion without proof.
2.a statement offered as a plea, an excuse, or a justification.
3.the act of alleging; affirmation.
4.an assertion made by a party in a legal proceeding, which they undertake to prove.
The contention of the father is also at odds with statements by superior Courts that have examined the provision. See Gill J in Owen & Owen (2020) 60 Fam LR 334 at paragraph [9].
In short, there is no requirement for there to be a proper basis for the allegations. All that is necessary is that there be an allegation. There are allegations in this case, the second precondition is satisfied.
The father next submitted that the SJR, in making the order under section 102NA(2), had relied on the conditions set out at subsection (1)(c)(i). The father submitted that the SJR did not have the power to make the order under subsection (1)(c)(i). He contended that he had not been convicted of, or charged with an offence involving violence, or a threat of violence to the other party. He accepted that he had been convicted of breaching the ADVO’s but that these were not convictions of an offence involving violence, or a threat of violence to the other party. He says, in effect, that the conduct leading to the findings of breach of the ADVO’s was not violent. His conduct amounted to calls, text messages, or a visit to the family home. None of these, he says, were violent behaviours.
In support of that submission, the father relied on section 14 of the Crimes (Domestic and Personal Violence) Act 2007 SW) (‘NSW Act’). The father says that it is apparent from the terms of section 14(4) of the NSW Act that there is a distinction to be drawn under that Act between an offence involving violence against a person, and other contraventions of apprehended violence orders. He says his offences did not involve violence against another person, and that, therefore, the terms of subsection (1)(c)(i) of section 102NA of the Act are not met.
In respect of this submission, I observe the following:
(a)the Act has used the term, ‘violence’, in subsection (1)(c)(i), it has not used the term, ‘family violence’;
(b)family violence is defined in section 4AB of the Act. The term, ‘violence’, is not defined in the Act;
(c)absent any other evidence or submission before me, the Acts use of the term, ‘violence’ in subsection (1)(c)(i) (and not ‘family violence’), would appear to be deliberate;
(d)it is a curiosity that the Act would use the term, ‘violence’, in subsection (1)(c)(i) in circumstances where:
(i)it has used the term, ‘family violence’, earlier in the same subsection: see subsection (1)(b); and
(ii)where the purpose of section 102NA is, among other things, to limit re-traumatisation of victims of family violence, and ensure victims of family violence give clear evidence.
Given the Act does not define the term, ‘violence’, it must bear its ordinary meaning. The Macquarie Dictionary defines violence as being:
1.rough force in action: the violence of wind.
2.rough or injurious action or treatment: to die by violence.
3.any unjust or unwarranted exertion of force or power, as against rights, laws, etc: injury; wrong; outrage.
4.a violent act or proceeding.
5.rough or immoderate vehemence, as of feeling or language; fury; intensity; severity.
6.a distortion of meaning or fact.
It is apparent by his submission that the father seeks to constrain the meaning of the term, ‘violence’, in subsection (1)(c)(i) to acts of physical violence against the person. I asked the father whether there was any textual consideration, or aspect of the Act that supported his submission. He was unable to point to any. He submitted, however, that the distinction he was asking the Court to draw was appropriate, given the terms of section 14 of the NSW Act.
I am unable to accept the father’s submission that the term, ‘violence’, in section 102NA should be construed narrowly, as contended by him, for the following reasons:
(a)in absence of an express statutory definition, the word, ‘violence’ must bear its ordinary meaning;
(b)the ordinary meaning of the word, ‘violence’, is not limited to physical violence. As the Macquarie Dictionary makes plain, violence can include ‘any unjust or unwarranted exertion of force or power, as against rights, laws, etc: injury; wrong; outrage’;
(c)support for the proposition that violence is not limited to physical violence can be seen from the terms of subsection (1)(c)(i) itself. Subsection (1)(c)(i), on its face, is clearly not limited to acts of actual physical violence. It also applies to threats of violence. Plainly, a threat need not involve physical violence against another;
(d)here, the mother had the benefit of an ADVO. That ADVO created rights for her benefit, and protection. The father breached the terms of that ADVO by contacting her or visiting her. That was plainly unwarranted, or unjust, and an exertion of power by him against rights she enjoyed under the ADVO;
(e)the father was unable to point to any textual considerations within the Act that supported his preferred construction of the term, ‘violence’; and
(f)the terms of section 14 of the NSW Act are of little assistance in construing the terms of the Act.
I would add that even if my conclusions above be wrong, I would nevertheless regard the father as having been convicted of, or charged with an offence involving the threat of violence. Contacting a person under an ADVO is to be regarded as a threat. A recipient of such conduct would find it a threat. It is, at the very least, a threat of a show of force, or power against the rights that the protected person enjoys under law.
In reaching the conclusions above, I have also taken into account the purpose of section 102NA of the Act. It would be contrary to the purpose of the provision if the father’s submission were to be accepted.
The father’s position would also lead to perverse outcomes. It would mean, for example, that the ban on cross-examination would apply automatically if there was a final family violence order in place, but that breach of that order would not automatically lead to a ban on cross-examination for some minor infraction of that order that was less than a show of physical violence.
For all of the reasons above, I am satisfied the terms of section 102NA(1)(c)(i) are met in this case.
There is separately the question of whether, if I am wrong in the conclusions I have expressed above, the Court should nevertheless exercise its discretion to make an order under section 102NA(2) having regard to the terms of subsection (1)(c)(iv). I asked the father whether he had anything to say as to whether I should, or should not exercise the discretion available to the Court. He simply asked that if I were going to do that, I place a notation on the order to that effect. He advanced no further submission on the issue.
The relevant conduct of the father occurred some years ago, and I am prepared to accept for the purposes of the present dispute, even though he made no such submission before me, that they occurred at a time of stress for him. I also accept there is no final ADVO in place between the parties. These matters tend to weigh in favour of not making an order under 102NA(2). These matters, however, need to be balanced against the following. First, the mother was protected by the ADVO, and the father was subject to it. Second, he breached the ADVO on multiple occasions. Third, he was sentenced in respect of his contraventions of the ADVO. This was not a case of a single, isolated breach. The breaches were multiple in nature. It is likely they would have caused some distress to the mother. It is appropriate that if the proceedings progress, she is not potentially re-traumatised, and is able to give clear evidence.
When all of these matters are weighed, I would exercise my discretion to make the order banning cross-examination under section 102NA.
For all of the reasons given above, I will not disturb the order of the SJR.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 31 October 2023
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