Stopford Malloy & Malloy (No. 3)
[2021] FamCA 284
•10 May 2021
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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stopford Malloy & Malloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
The acrimonious and prolonged litigation between the applicant wife, Ms Stopford Malloy ("the wife") and the respondent husband, Mr Malloy ("the husband") have an unfortunate history in this Court.
The proceedings, which also involve a number of third parties in relation to financial disputes, have been listed before this Court on more than 90 occasions, and have been the subject of close to 30 judgments, including decisions of the Full Court.
The Court has made heroic attempts to ready the matter for a final hearing. A two week trial was scheduled to commence on 3 May 2021 in Adelaide. Unfortunately, this has not been possible in relation to the financial aspects of the proceedings, which were vacated on 7 April 2021, and will require a future listing for final hearing.
The parenting aspects of the proceedings relate to C, born in 2014 (“the child”). To the parties’ credit, all outstanding parenting issues were finalised by consent on 3 May 2021, after the parties attended a private mediation in April 2021. The orders made on 3 May 2021 varied earlier final orders made by consent by Hannam J on 31 October 2017 (“the 2017 orders”): Stopford Malloy & Malloy (No 3) [2017] FamCA 932 (“Stopford Malloy & Malloy (No 3)”). As will be explained, it is necessary for the purposes of this judgment to refer to some of the 2017 orders and Hannam J’s reasons.
SHORT HISTORY
The history of these proceedings is well known to the parties, and has been thoroughly outlined in numerous previous judgments. It is therefore only necessary to outline some discrete, relevant matters.
These proceedings were commenced by the wife on 14 July 2015 by the filing of an Initiating Application seeking both parenting and financial relief at a time when the child was approximately nine months old. Although there was a brief reconciliation following the Initiating Application, the parties finally separated in January 2016.
The parties’ position in 2017 regarding allegations of family violence and risk in the parenting dispute was helpfully summarised in Stopford Malloy & Malloy (No 3) by Hannam J at [6]-[8]. As to the mother, her Honour noted the mother contended that “while the child should have the benefit of a meaningful relationship with his father, he is a vulnerable child who has been exposed to physical harm and abusive and violent conduct, perpetrated by the father, towards herself, both before and after separation”. Further, the mother alleged that “the father fails to demonstrate any awareness about the impact of his own behaviour upon the welfare of the child and, on this basis, poses an unacceptable risk to the child’s physical and emotional wellbeing”.
The evidence relating to the alleged perpetration of family violence was not tested before Hannam J, and no final determination of allegations by the mother was made. The 2017 orders were expressly agreed to be “without admissions”.
In summary, the 2017 orders provided for the mother to have sole parental responsibility of the child, and that the child would live with the mother and spend time with the father in accordance with a particular regime. The father’s time with the child was to be supervised by two nominated supervisors. The consent orders provided for the parties to attend mediation no later than 13 October 2018, defined as “the date of review”, to discuss the child’s time with the father from his fourth birthday, referring to a number of the other orders made.
The relationship between the husband and the supervisors broke down in or around October 2018. Here it is only necessary to note that the child has, as a result, not spent time with the husband since October 2018.
On 6 December 2019, the husband filed an Application in a Case seeking access to the child. In particular, he sought to spend unsupervised time with the child from 10.00 am until 4.00 pm each alternate Saturday, as well as additional time on special occasions. The mother filed a Response and opposed such orders being made. The father’s Application in a Case and the mother’s Response were finalised on 3 May 2021 by consent.
The 2017 orders, as varied or discharged on 3 May 2021, are the parenting orders which currently operate.
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.
Restraints on denigration, harassment, or intimidation are forms of orders quite commonly made in parenting proceedings in this Court on an interim as well as a final basis. If such orders, made on an interim basis, fall within s 102NA(1)(c)(iii), the consequence may be that the mandatory application of s 102NA(2) is engaged, which would prohibit the father from cross-examining the mother without representation.
Although the parenting issues have been finalised, the financial issues are yet to be heard and determined. The wife maintains her allegations of family violence against the husband in her claims to a property settlement. Broadly speaking she claims, for the purposes of s 79 of the Act, her contributions have been made significantly more arduous by the family violence perpetrated by the husband: Kennon v Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1; [1997] FamCA 27 (“Kennon”).
The husband continues to indicate his intention to cross-examine the wife at the final hearing of the financial issues.
Consequently, despite the final determination of parenting issues, the question of the mandatory engagement of s 102NA(2), and the possible prohibition on the husband himself cross-examining the wife remains live and requires determination prior to the hearing of the financial aspect of the proceedings.
THE LAW
Section 102NA
The relevant subsections of s 102NA, which were recently inserted into Part XI, Division 4 of the Act by the Family Law Amendment (Family Violence And Cross-Examination Of Parties) Act 2018 (Cth) (“the Cross-Examination Act”), are 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.
It can be seen that, if subsection (2) is enlivened by satisfaction of the conditions set forth in subsection (1), both the protected party and the alleged perpetrating party will be precluded from personally cross-examining one another. Instead, such cross-examination must be conducted by a legal practitioner. If s 102NA(2) applies, without representation, the husband will be unable himself to cross-examine the wife at the final hearing of financial issues.
Decisions of trial judges in this Court have held that an indication of an intention to cross-examine is sufficient to meet the precondition in s 102NA(1)(a), while an allegation of family violence is sufficient to satisfy s 102NA(1)(b): Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90 at [4]-[9].
Subparagraph s 102NA(1)(c)(iv) gives the Court a discretion. However, the presence of the words “any of the following are satisfied” means that if any of s 102NA(1)(c)(i), (ii) or (iii) are satisfied, s 102NA(2) is mandatorily engaged. There is no judicial discretion.
It was not contended that subparagraph s 102NA(1)(c)(i) has any application. I also note here that none of Orders 25.3, 25.6, 25.7 or 25.9 are “family violence orders” within subparagraph s 102NA(1)(c)(ii). In s 4(1) of the Act "family violence order" is defined to mean “an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence”.
The question is therefore whether any of the relevant restraints are injunctions under section 68B or 114 “for the personal protection of either party” and “directed against the other party”.
Sections 68B and 114(1) are in the following terms:
68B Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
i.a parent of the child; or
ii.a person with whom the child is to live under a parenting order; or
iii.a person with whom the child is to spend time under a parenting order; or
iv.a person with whom the child is to communicate under a parenting order; or
v.a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
i.a place of residence, employment or education of the child; or
ii.a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
i.a place of residence, employment or education of a person referred to in paragraph (b); or
ii.a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
…
114 Injunctions
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Clearly, s 102NA(1)(c)(iii) picks up the wording “the personal protection of a party to the marriage” from ss 68B and 114(1).
None of the relevant restraints specifically refer to either s 68B or s 114(1). However, for the purposes of s 68B I am satisfied the proceedings are proceedings instituted for an injunction in relation to a child. For the purposes of s 114(1), the proceedings are within the definition of matrimonial cause in subsection 4(1) of the Act, being “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship”.
As noted, the relevant restraints were made by consent. In her reasons for judgment, Hannam J at [20] refers in summary to some of the relevant restraints, such as “denigrating the other or allowing another person to do so”. No specific mention was made of the orders restraining harassment, intimidation or surveillance. At [32], Hannam J declined to make some proposed orders and notations because, although they were appropriate for inclusion in a parenting plan, they were not to be made as Court orders or notations. It is unnecessary to refer to these in any detail. However, as can be seen, despite these issues, the relevant restraints were made. In the absence of any contrary reason put forward by any of the parties in submissions, I would not conclude other than that Hannam J made them because they were within power. It is hard to see that there is any provision in the Act, other than s 68B or s 114(1), which gives the power within this jurisdiction to make the relevant restraints as Court orders. For example, they could not be said to fall within the meaning of a “parenting order” in s 64B(2). I will proceed on the basis that the relevant restraints were made pursuant to either s 68B or s 114(1).
Explanatory Memorandum
Before it was passed into law, the Cross-Examination Act was put to the parliament as the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 (Cth) (“the Bill”). Clause 10 of the General Outline to the Explanatory Memorandum to the Bill (pg. 3) states:
10. The Bill also responds to recommendations in the House of Representatives Standing Committee on Social Policy and Legal Affairs report on A better family law system to support and protect those affected by family violence, released on 7 December 2017…
Clause 11 of the General Outline of the Explanatory Memorandum (pg. 3) is as follows:
11. The Bill would implement recommendation 12. Consistent with recommendation 18, the Bill would also create a requirement for protections to be put in place for victims of family violence in all family law proceedings, including property matters.
Clause 14 of the Notes on Clauses of the Explanatory Memorandum (pg. 9) gives as a note to the expression “there is an allegation” that this is intended “to capture all allegations of family violence made at any stage of the proceedings.”
Ultimately, as suggested by the Explanatory Memorandum to the Bill (at pg. 11);
Where a family law injunction for personal protection currently applies between parties, the court has determined that a party is in need of protection from the other party. It is therefore appropriate that the mandatory requirements apply so that the victim is protected from being personally cross‑examined by the alleged perpetrator, or from having to personally cross‑examine the alleged perpetrator.
Numerous clauses of the Explanatory Memorandum make clear that the provisions of Division 4 of Part XI, especially ss 102NA and 102NB, are intended conform to several international conventions, to protect a party’s right to procedural fairness, while recognising that women are disproportionately affected by family violence, even if the Act is itself “gender neutral”: see clauses 5, 6, 7, 10, 11, 12, 16. The purpose of the legislation is to protect victims of family violence from the trauma of being cross-examined personally by perpetrators and promote their access to justice.
“There is an allegation of family violence”
It is important here to make some further comment on the precondition in s 102NA(1)(b), that “there is an allegation of family violence between the examining party and the witness party”. There is a live question as to the scope of this precondition. For example, allegations may be abandoned during proceedings or parenting issues may be disposed of separately from the financial issues, whether by agreement or judicial determination, and then neither party may make or rely upon allegations of family violence for the purposes of determining the financial issues. Or, in determining parenting issues before and separately to financial issues, the Court may make a finding that there is no substance in allegations of family violence. In such circumstances, can it still be said “there is an allegation of family violence”?
In answering this question, it is significant that Clause 11 of the General Outline of the Explanatory Memorandum makes clear the prohibition on alleged perpetrators cross-examining alleged victims is intended to apply to property proceedings as well as parenting proceedings, while Clause 14 of the Notes on Clauses makes clear the intention of the Cross-Examination Act is to capture “all allegations of family violence made at any stage of the proceedings”.
The wife argued that the relevant allegation of family violence can be made inside or outside the proceedings. I understood this submission to mean if an allegation of family violence is recorded in, for example, a police report, or in the notes of a treating health professional, then there “is” an allegation of family violence within s 102NA(1)(b). She further contended that the Court must be sufficiently satisfied as the “genuineness” of the allegation, pointing to s 102NA(1)(c)(i) or (ii), as examples of factors which the legislation indicates support the genuineness of the allegation.
Despite superficial attraction, I do not accept these submissions. The opening words of s 102NA(1) are “[i]f, in proceedings under this Act…”. These words confine the application of the section to such relevant allegation as exists “in proceedings” under the Act. In s 4 of the Act proceedings are defined very broadly to mean “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”. Clearly, the fact of the existence of an allegation must itself be proved in some way before the satisfaction of s 102NA(1)(c) can be established. To exist “in proceedings”, an allegation in my view must be contained, and thus be made, in the ordinary and prescribed procedural documents of the Court, such as Initiating Applications or Responses, Notices of Risk, Applications in a Case, or Points of Claim, or in evidence such as a family or single expert report, party or witness affidavits and their annexures or exhibits, or in documents produced on subpoena. This construction is consistent with the limited purpose of s 102NA(2) which is to prohibit cross-examination between alleged perpetrator and victim.
In construing s 102NA(1)(b), I have received assistance from the decision of Judge O'Shannessy in Middleton & Redmond [2021] FCCA 316. At [46] his Honour said:
A significant focus on the scheme as set out in the Explanatory Memorandum is the potential continued impact on the victim of the scourge of family violence whenever that may have occurred. The Explanatory Memorandum explains how that impact on the victim may affect the judicial process by limiting the ability of the victim to challenge evidence or to participate in the legal process. It follows that impact may also effect the ability of a victim to present evidence. This is a property case but it is obvious that these matters would also ultimately impact upon the best interests of children.
His Honour continued at [48]:
There is nothing in the provisions and no other reason to infer that the effect of family violence on the victim is only passing or is ameliorated merely by the passing of time. The purpose of the provisions is to deal with the effect upon the victim and the consequent impact upon procedural fairness and the ability to challenge or lead evidence. Hence taking the provisions as a whole and considering the Explanatory Memorandum and the purposes of the provisions and applying section 15AA of the Acts Interpretation Act 1901 (Cth), I find that the words “there is an allegation of family violence” means an allegation has been made, whenever made, and so exists and hence “is”. In doing so I am cognisant that this reading expands the scope of the legislation but this reading best achieves the purpose of the Amending Act. Such reading is also consistent with the literal meaning of “is”…
The point of s 102NA(2) is to prohibit an alleged perpetrator cross-examining an alleged victim. It is a protection against further trauma in the proceedings for the latter while protecting procedural fairness for the former. In my view, the purpose of s 102NA is served by construing subparagraph 102NA(1)(b) to mean that once there is an allegation of family violence between parties in proceedings, the subparagraph is satisfied. This remains so even if the alleged victim does not press the allegation and no finding is made. It also remains so even if parenting issues are heard and decided separately to financial issues, or unusually, vice versa, and the allegations of family violence made in the parenting proceedings are not relied upon in the hearing of the financial matters.
A more difficult question arises if an allegation is made and subsequently found, during the proceedings, to have no basis. It seems to me that if such a finding is made, for example, in parenting proceedings heard and determined prior to financial matters, it must bind the parties, subject to appeal, and consequently there “is” no longer any allegation of family violence and subparagraph 102NA(1)(b) would not, or no longer would be, satisfied. However, this question is not raised by the facts of this case, and I express no concluded view.
In these proceedings there clearly “is” an allegation of family violence, indeed more than one, which the wife made against the husband for the purpose of the parenting issues, and which she continues to rely upon for the determination of the financial issues.
Injunctions made for the “Personal Protection” of a party
This leads to the next question, namely, the characterisation of the relevant restraints.
There is no definition of an injunction made for the “personal protection” of a party in the Act. There are surprisingly few authorities on “the issue of the personal protection of a party to the marriage”: Cross & Cross [2007] FamCA 387 (“Cross”) at [21].
However, the ambit of the expression “personal protection” has been the subject of some judicial comment in the last forty years. There is early authority which tends to equate orders for personal protection with “non-molestation orders” and physical integrity. In Murkin & Murkin (1980) FLC 90-806; (1980) 5 Fam LR 782 (“Murkin”), Nygh J heard a dispute as to whether an injunction to freeze any disposition of superannuation funds could be made pursuant to s 114(1) of the Act. In submissions, counsel for the wife suggested that the orders would be made for the “personal protection” of the wife, because such an injunction would protect her personal rights. Nygh J rejected these submissions at 75,082, saying:
I do not agree with [counsel] that the right, if it exists at all, comes within the description of ‘personal protection’. If his argument is correct, the reference to the property of the parties would be superfluous, for every right is personal. The logical inference from the words as used in sec 114(1) is that the words ‘personal protection’ refer to the protection of the physical integrity of a party such as are secured by non-molestation orders. (Emphasis added).
There is an old tradition in matrimonial law of equating molestation with the act of ‘annoying’ someone. An act was considered to be a molestation if it was “done with the intent to annoy, and does in fact annoy…”: Fearon v Earl of Aylesford (1884) 14 QBD 792 (“Fearon”), at pp 801-802, followed in Moio & Moio (1984) FLC 91-575 at p 79,652.
However, in English & English (1986) FLC 91-729, the parties had given mutual undertakings to the Court that “they will not annoy, interfere with, assault, molest or harass the other party or cause that party to be annoyed, assaulted, molested or harassed”. The husband claimed the wife had committed contempt by breaching the undertaking, on the basis of allegations which he claimed “annoyed” him. It is unnecessary to set out the detail of the allegations. The Full Court of the Family Court differentiated “molest” from “annoy”. The Full Court expressed the view that “annoy” is a subjective term, and concept of “annoy” is so wide and obscure that it should not be used in injunctions. On the other hand, “harass” and “molest” possess an element of objective, discernible conduct: at p 75,296.
Nygh J’s description of a personal protection injunction as “the protection of the physical integrity of a party” was considered in Wilmoth & Wilmoth (1981) FLC 91-030; (1981) 6 Fam LR 807, and by the Full Court in Kemsley & Kemsley (1984) FLC 91-567; (1984) 10 Fam LR 125 (“Kemsley”). These decisions both make it clear that s 114(1) should be construed broadly. Personal protection injunctions need not be limited to physical protection; rather, they include “such matters as the protection of [a party’s] right to lead [their] own life without undue interference from the [other party]”: Kemsley at 79,590.
There is authority which suggests that an order restraining denigration of a party is an order for that party’s personal protection pursuant to the Act. Plows & Plows (1979) FLC 90-712; (1979) 5 Fam LR 590 (“Plows & Plows”) was a case about raising children a religious sect called the Plymouth Brethren. In the Full Court, Wood SJ referred to the decision of K v K (1979) FLC 90-680 (K v K”) in the Supreme Court of NSW, in which Toose J made a non-denigration order restraining both parents, who were members of the Exclusive Brethren sect. Wood SJ proposed orders restraining each party from denigrating “the other or the other's beliefs to the children and that they not permit any person to do so”. From the report, it does not appear that this was the subject of any sustained argument, and there was no discussion of the jurisdictional basis for such an order. However, no later authority suggests these authorities are wrong in this regard.
Kemsley was a case about contempt, through breach of orders for the personal protection of a wife. At 79,590 the Full Court said:
In the circumstances of this particular case, it was appropriate to make orders for the personal protection of the wife. The words ‘‘personal protection’’ do not only refer to her physical protection, but they are apt to include such matters as the protection of her right to lead her own life without undue interference from the husband. In Vaughan v. Vaughan (1973) 3 All E.R. 449 Karminski J. pointed out that the Oxford Dictionary meaning of the word ‘‘molestation’’ includes ‘‘causing trouble to’’, ‘‘vexing’’, ‘‘putting to inconvenience’’. An order might be for the personal protection of the wife if it prevented the husband from interfering with her employment or business or her social life or if it were designed to safeguard her mental or emotional well being. The qualification that it must be an order or injunction with respect to the circumstances arising out of the marital relationship was satisfied in the present case having regard to the relevant facts. The husband’s conduct towards the wife and his attitude towards her association with R all arose out of the marital relationship of the husband and wife.
In Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 85 ALD 617; [2005] FCAFC 56 (“Sok”), the Full Court at [70] cited Kemsley and said:
There is nothing in the language of s 114(a), (b) or (c) which requires a finding of physical violence or the threat of physical violence as a precondition to the making of an order. The decision of the Full Court of the Family Court [in Kemsley] demonstrates that no such limitation is implicit in the notion of ‘personal protection’.
At [72] and [73] the Full Court made clear that in Kemsley the injunction, which restrained the husband from assaulting the wife’s new partner, was for the wife’s personal protection because it restrained the husband from causing her distress by such an assault.
In Cross, Cronin J dealt with an application for an injunction under s 114(1) on the basis the wife alleged she was being harassed by the surveillance of a private investigator engaged by the husband. At [24] and [25] Cronin J said “personal protection” covers intimidation and harassment and “[a]ll of these terms refer to one person’s infringement on the right of privacy of the other.” This included surveillance.
At [26] Cronin J analysed the concept of personal protection by reference to the traditional role of injunctions to protect rights:
Most injunctions are prohibitory injunctions involving an order of the court exercising equitable jurisdiction which is directed at restraining the commission or continuance of a wrongful act. The wrongful act must generally be one of defiance of a recognised legal or equitable right. The recognised right of the wife in this case is to live her life free from harassment and not have her privacy invaded.
In Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29 (“Oates”) the Full Court considered two orders made against a wife, one that she “be restrained from communicating with the husband by any means other than through their respective legal advisers”; and the other that the wife “be restrained from coming within 100 metres” of a third party’s residence. The husband was in a relationship with the third party and regularly at her residence. The Full Court accepted the first order was an order under s 114(1) for the “personal protection” of the husband. The debate concerned the width of the power in s 114(1) to make the second order. At [69], the Full Court saw no reason to adopt a different interpretation of the meaning of the term “personal protection” to that advanced by Nygh J in Murkin, that is, “the protection of the physical integrity of a party”. This view lead the Full Court to conclude that the order restraining the wife coming within 100 metres of a third party’s residence was not an order for the “personal protection” of the husband. The order was “in substance an order to protect [the third party’s] entitlement to quiet enjoyment of her property”, a protection which could be obtained from other courts and not within the power conferred by s 114(1) (at [71]). The order would restrain the wife even when the husband was not present at the third party’s property, while the order restraining communication with the husband protected his physical integrity while he was at that property.
On one view, the decision in Oates could be understood as limiting orders for personal protection to orders which protected physical integrity. However, the Full Court did not refer to the decision in Kemsley or to any other authority which held that an order for the protection of a party to a marriage is not limited to the protection of a party’s physical integrity, such as an order for the protection of a party’s right to lead their own life without undue interference from the other party. Moreover, in Sok, the Full Court explicitly made clear orders for personal protection are not limited to restraining physical violence or threats of physical violence. I do not read the Full Court’s decision in Oates as going beyond a simple endorsement of the view of Nygh J in Murkin, or as intending to diverge from, or overrule, earlier authority.
Since the decision in Oates, in Modlin & Anstead and Anor [2013] FamCA 955 (“Modlin”) Loughnan J was invited by the wife and a step father to make orders in the following terms:
That the father is hereby restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication
That the father is hereby restrained from approaching [the mother’s son Y] or any place that [Y] may reside or be employed from time to time and is hereby restrained from communicating with [Y] by any means whatsoever including in writing or by electronic communication
That the father is hereby restrained from approaching the mother or any place the mother may reside or be employed from time to time and is hereby restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication
At [224], Loughnan J cited Kemsley and at [225], after noting the father had assaulted the mother and breached a state domestic violence order, held the injunctions sought by the mother and the step father were for the personal protection of the mother, saying “[i]n addition, in the circumstances before me, a significant aspect of the mother’s argument for an injunction is that it would safeguard her mental or emotional wellbeing and thereby advance the interests of the children”.
On the basis of this discussion of the authorities, I conclude that the concept of personal protection in ss 68B, 114(1) and 102NA(1) is broad and open ended, and an injunction for the personal protection of a party includes, non-exhaustively, the following types of order:
a)An order which protects the physical integrity of a party: Murkin; Oates;
b)An order which restrains one party from denigrating the other, or parties denigrating each other: Plows; K v K;
c)An order protecting the right of one party to lead their own life without undue interference from the other party, including interference with the employment or business or social life of the other party: Kemsley;
d)An order designed to safeguard a party’s mental or emotional wellbeing: Kemsley; Modlin
e)An order restraining one party from communicating with the other party other than through that party’s lawyers: Oates; and
f)An order which protects a party from intimidation, harassment and infringement of their right of privacy, including by surveillance: Cross.
As Cronin J pointed in Cross, many of the terms connoting personal protection overlap. For example, a protection from intimidation or harassment also protects mental or emotional wellbeing. However, an order restraining a party from “annoying” the other party, which arguably would affect their emotional wellbeing, is not an order for personal protection and should not be made because of the inherent width and obscurity of “annoy”: English.
In accordance with my conclusions, in my view, each of the relevant restraints is properly characterised as “an injunction under section 68B or 114 for the personal protection of either party” and “directed against the other party”. Therefore, the precondition in s 102NA(1)(c)(iii) is satisfied.
CONCLUSION
I am satisfied that s 102NA(2) has mandatory application in these proceedings. Consequently, the wife may not be cross-examined by the husband directly. Any cross examination of the wife on the husband’s behalf must be carried out by a legal representative.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 10 May 2021
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