Stennard & Stennard (No 2)
[2023] FedCFamC1F 815
•22 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stennard & Stennard (No 2) [2023] FedCFamC1F 815
File number(s): CAC 2501 of 2020 Judgment of: GILL J Date of judgment: 22 September 2023 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – s 102NA – Cross-examination where there are allegations of family violence – s 102NA not about securing legal representation for a party – Protection of the parties themselves and protection of the integrity of evidence – Where the wife is currently unrepresented and shows no prospect of being represented – Where the wife is likely to be subjected to harm and the integrity of evidence may face compromise if the wife cross-examines the husband directly – s 102NA order made Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 22 September 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Ms Clifford, Dobinson Davey Clifford Simpson ORDERS
CAC 2501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STENNARD
Applicant
AND: MR STENNARD
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The deadline for the husband to file his material is extended to 19 October 2023.
2.In these proceedings the examining party must not cross-examine the witness party personally and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
3.In the event that the wife seeks to avail herself of the representation program auspiced by the legal aid office as a consequence of the s 102NA order then she is to make such application and furnish all necessary documentation to them by close of business on Tuesday 26 September 2023.
IT IS NOTED THAT:
4.Failure of the wife to comply with this direction may impact on any application she makes for vacating future trial dates.
IT IS FURTHER ORDERED THAT:
5.Any party may seek the urgent relisting of this matter for further directions and should do so in the event that circumstances arise that imperil the progress of the matter to its allocated trial date.
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
GILL J
In this matter the wife asks that I make an order pursuant to s 102NA prohibiting the parties from cross-examining each other personally. The wife has voiced that application on the basis that she seeks legal representation.
It has been explained to her that s 102NA is not about securing legal representation for a party, but is primarily directed to two things. The first being the protection of the parties where there are allegations of family violence, being a protection within the proceedings themselves and secondly, the protection of the integrity of the evidence that is given in the proceedings where there is an allegation of family violence.
It is well understood that if a person has been exposed to family violence that can create particular pressures upon them should they be required to engage personally with the other party in cross-examination, either in the process of asking questions or being asked questions directly.
In this case the focus of the issue is not so much the wife being asked questions directly by the husband as he has retained, and it may be expected that he will continue to retain, his legal representation in the proceedings, meaning that he will have the use of legal practitioners to ask the wife questions. The matter at issue is the wife, who is currently unrepresented, and at present shows no prospects of securing representation being required in the conduct of her case to personally cross-examine the husband.
In aid of her application the wife has recited a number of allegations of family violence of a physical nature and of an emotional or psychological nature and of a financial nature. Combined with this, the wife has produced to chambers a number of reports by her treating psychiatrist, as well as annexing a report of her treating psychologist. Each of these will be marked together jointly as exhibit C1 in the proceedings. When those are considered, in particular in the light of the self description contained within the wife’s affidavit, the impression is one of the wife suffering considerable fragility in terms of her mental health both generally, but in particular in the prospect of the litigation and in the prospect of cross‑examining the husband directly. The wife has described this globally as an expectation that she will suffer from anxiety and panic should she be in a position to cross-examine the husband directly. It is in those circumstances that I consider that the wife may be subjected to harm if caused to cross-examine the husband directly and that the evidence the subject of the proceedings or the integrity of that evidence may also face compromise for the same reasons.
Under those circumstances it is appropriate that the ban on personal cross-examination be put in place as both protective of the wife and protective of the integrity of the proceedings.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 September 2023
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