FAMILY COURT OF AUSTRALIA
Stopford Malloy & Malloy (No. 3) [2021] FamCA 284
File number(s): ADC 2595 of 2015 Judgment of: HARPER J Date of judgment: 10 May 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Whether section 102NA(2) of the Family Law Act 1975 (Cth) has mandatory application in the proceedings – Where there are allegations of family violence between the wife and the husband – Where the wife and husband intend on cross-examining one another – Where parenting issues finalised by agreement – where wife relies upon allegations of family violence for the purposes of an argument based upon Kennon v Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1 - Where the wife argues that personal protection injunctions are in place by virtue of consent orders from October 2017 – Consideration of what is meant by a personal protection injunction – Held s 102NA(2) has mandatory application. Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 62G, 68B, 102NA, 102NB, 114
Family Law Amendment (Family Violence And Cross-Examination Of Parties) Act 2018 (Cth)
Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 (Cth)
Cases cited: Cross & Cross [2007] FamCA 387
English & English (1986) FLC 91-729
Fearon v Earl of Aylesford (1884) 14 QBD 792
K v K (1979) FLC 90-680
Kemsley & Kemsley (1984) FLC 91-567
Kennon v Kennon (1997) FLC 92-757
Middleton & Redmond [2021] FCCA 316
Modlin & Anstead and Anor [2013] FamCA 955
Moio & Moio (1984) FLC 91-57
Murkin & Murkin (1980) FLC 90-806
Oates & Crest (2008) FLC 93-365
Owen & Owen (2020) 60 Fam LR 334
Plows & Plows (1979) FLC 90-712
Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 85 ALD 617
Stopford Malloy & Malloy (No 3) [2017] FamCA 932
Wilmoth & Wilmoth (1981) FLC 91-030
Number of paragraphs: 67 Date of last submission/s: 3 May 2021 Place: Sydney Counsel for the Applicant: Mr Wells QC Counsel for the Applicant: Mr McGinn of Counsel ORDERS
ADC 2595 of 2015 BETWEEN: MS STOPFORD MALLOY
Applicant
AND: MR MALLOY
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
HARPER J
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have been advised by the Court:
(a) that pursuant to those requirements, neither applicant wife nor respondent husband may cross-examine the other personally;
(b) that pursuant to those requirements, any cross-examination of the applicant wife or respondent husband may only be conducted by a legal practitioner acting on behalf of the other party;
(c) as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d) that a copy of…
Keep reading for free
Create a free CaseChat account to read Stopford Malloy & Malloy (No. 3) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] FamCA 284
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the existing injunctions, which included restraints against denigration, intimidation, surveillance, and specific communication methods, constituted "an injunction under section 68B or 114 for the personal protection of either party... against the other party" as contemplated by section 102NA(1)(c)(iii) of the Act. This determination was crucial to ascertain if the mandatory prohibition on self-representation during cross-examination under section 102NA(2) applied to the proceedings.
Harper J reasoned that the restraints imposed by the 2017 consent orders were indeed properly characterised as injunctions for the personal protection of each party against the other, thereby satisfying the precondition in section 102NA(1)(c)(iii). The court noted that the wife's allegations of coercive and controlling behaviour, if proven, would fall within the definition of family violence. Consequently, the court concluded that section 102NA(2) had mandatory application in these proceedings.
The court ordered that the requirements of section 102NA(2) of the *Family Law Act 1975* (Cth) were to apply to any cross-examination of the applicant wife and respondent husband. This meant that neither party could cross-examine the other personally, and any cross-examination of either party could only be conducted by a legal practitioner acting on their behalf. The parties were advised of this requirement and the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
Orders
Orders of the court
ADC 2595 of 2015
BETWEEN:
MS STOPFORD MALLOY
Applicant
AND:
MR MALLOY
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
HARPER J
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;
And further noting that the parties have been advised by the Court:
(a) that pursuant to those requirements, neither applicant wife nor respondent husband may cross-examine the other personally;
(b) that pursuant to those requirements, any cross-examination of the applicant wife or respondent husband may only be conducted by a legal practitioner acting on behalf of the other party;
(c) as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d) that a copy of these orders will be provided by the court to Legal Aid, which administers the said scheme.
THE COURT ORDERS
1. The requirements of sub-section 102NA(2) of the Family Law Act 1975 (Cth) are to apply to cross-examination of applicant wife and respondent husband.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Relevantly for the purposes of this judgment, the 2017 orders include the following provisions, which remain operative:25. That without admission each of the parties be restrained and an injunction is granted restraining each of them from:-25.3. denigrating the other or any member of the other’s family or permitting or suffering any other person to do so while spending time with the child [(“the non-denigration order”)];…25.6. acting in any threatening or harassing or intimidating way towards any other person including the other party or permitting any other person to do so in the presence of the child [(“the non-intimidation order”)];25.7. following or keeping the other party under surveillance or permitting or authorising or suffering any person to follow or surveil the other party [(“the non-surveillance order”)]; …25.9. communicating with each other than by text message (sic), email or communication book save and except for the purposes of giving effect to paragraphs 10 and 32 of these orders by telephoning the other party's mobile telephone [(“the communication restraint”)]; … (collectively “the relevant restraints”) For the purposes of this judgment, I have also had regard to the Family Report prepared pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) by a Family Consultant, Ms AT, dated 12 April 2021. This Report was prepared for the purposes of the final hearing. In that report, Ms AT records that the mother continued to make allegations of coercive and controlling behaviour by the father, such as control, emotional abuse, denigration, and strangulation during the relationship (Family Report dated 12 April 2021, pg. 6, paragraphs 10-11; pg. 27 paragraph 103). At paragraph 103, Ms AT records the mother “was frequently tearful, and presented as though still largely affected by her past experiences.” The behaviour alleged by the mother against the father would, if proven, constitute family violence within the definition of family violence given in s 4AB of the Act: “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”. The father disputed all of the mother’s allegations; he was clear in his position that he claimed he had not perpetrated family violence, and was not a risk to the child. The husband is self-represented. When the matter came before me for a Compliance Check on 19 April 2021, the wife raised the possible mandatory application of section 102NA(2) of the Act. In particular, the wife put in issue whether the relevant restraints fall within the wording in s 102NA(1)(c)(iii) of the Act, being “an injunction under section 68B or 114 for the personal protection of either party … against the other party”, with the result that the husband, as self-represented litigant and an alleged perpetrator of family violence, could not himself cross-examine the wife, except through legal representation.