Stennard & Stennard (No 4)

[2024] FedCFamC1F 560

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stennard & Stennard (No 4) [2024] FedCFamC1F 560

File number(s):	CAC 2501 of 2020
Judgment of:	GILL J
Date of judgment:	19 August 2024
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Discharge of s 102NA order – Where the wife is unrepresented and wishes to ask questions of the husband – Where the husband is represented and there is no indication that questions will be asked of the wife other than through his counsel – Discharge of s 102NA order on application by the wife who is the party that originally sought the order – No objection from the husband – Discharge of s 102NA order to advance the interests of justice
Legislation:	Family Law Act 1975 (Cth) – s 102NA
Division:	Division 1 First Instance
Number of paragraphs:	3
Date of hearing:	19 August 2024
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person
Counsel for the Respondent:	Ms Borger
Solicitor for the Respondent:	Dobinson Davy 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:	19 AUGUST 2024

THE COURT ORDERS THAT:

1.I discharge the previously made s 102NA order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Stennard & Stennard has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. There is currently an extant section 102NA order. The effect of that order is that it prohibits personal cross-examination by the husband of the wife, or by the wife of the husband. The application for the s 102NA order was made by the wife. She was then unrepresented. The husband has at all stages been represented and there is no indication that questions would be asked of the wife, other than through his counsel. The wife, although represented until a short time ago, is now unrepresented for the trial. She has made no application to adjourn the trial and has indicated that she would ask the husband questions directly herself.

2. The protective nature of the s 102NA provisions has been explained to the wife, noting that they are there so that persons are not put in the difficult position, where there are allegations of family violence, of being asked questions directly by a former partner, or to ask questions of that former partner directly. The prospect of a person being compelled to do so in the running of their case carries with it prospects of the compromise of the administration of justice, as their capacity to answer questions or to ask questions might generally be thought of to be compromised by a history of alleged family violence. However, in this case, Ms Stennard now seeks a discharge of that previous order and seeks that discharge in order to further the interests of justice. At present, there would be no basis upon which her husband could be questioned in respect of these property proceedings given the presence of that order and the absence of legal representation for the wife.

3. On her application she seeks to advance the administration of justice by permitting herself to ask questions directly of him. Under those circumstances, and noting that there is no opposition on the part of the husband, I grant the application for the discharge of the s 102NA order.

I certify that the preceding three (3) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       26 August 2024