Teng & Cho (No 2)
[2025] FedCFamC2F 1022
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Teng & Cho (No 2) [2025] FedCFamC2F 1022
File number(s): SYC 3205 of 2022 Judgment of: JUDGE STREET Date of judgment: 24 July 2025 Catchwords: FAMILY LAW – s 102NA – broad construction. Legislation: Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross-examination) Bill 2008
Cases cited: Naisby & Naisby (No 2) [2024] FedCFamC1F 699 Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 24 July 2025 Place: Sydney Counsel for the Applicant: Mr S Schonell Solicitor for the Applicant: Monardo Legal Counsel for the Respondent: The Respondent appeared via visual/audio link ORDERS
SYC 3205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TENG
Applicant
AND: MS CHO
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 102NA of the Family Law Act 1975 (Cth), neither party is to be permitted to cross examine the other party.
2.The Court adjourns the property proceedings part heard to 23 - 24 October 2025 commencing at 10:00 am by video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
3.The Court grants leave to the applicant to obtain an updated valuation from H Company, in respect of the Suburb C property, to be filed and served at least seven (7) days prior to the adjourned hearing date.
4. The applicant provide to the respondent or the respondent’s representative, at the time of service of the report, a copy of all communications sent to H Company in relation to obtaining the further report.
THE COURT ORDERS THAT:
A. By reason of the order made under s 102NA, the parties are entitled to Legal Aid through commonwealth funding in the further conduct of these proceedings being final property proceedings in which there is an allegation of family violence.
B. The Court expects the respondent mother consistent with what the Court was informed, to forthwith takes steps with the benefit of this order to attend upon Legal Aid urgently, to obtain legal aid representation noting that these are proceeding that have already occupied four days.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are property proceedings that were originally commenced on 13 May 2022. Today was to be day 5 of the hearing that has already taken place and commenced on 19 May and continued to 22 May 2025, and the matter was fixed to continue tomorrow in order to conclude the property proceedings. The applicant husband (“the husband”) has given evidence, and the respondent mother (“the wife”) is currently in the course of cross-examination.
The mother, in that earlier hearing, was the subject of representation with counsel appearing until there was filed a notice of ceasing to act on 17 July 2025. When the matter was called this morning, the mother identified that she was acting for herself. In these proceedings, there are allegations of family violence by the mother in relation to the father.
The Court raised at the commencement of the present hearing whether the mother had taken steps to obtain legal representation. The mother indicated that she had tried to obtain Legal Aid representation and was unsuccessful. The Court raised with the mother that the Court was minded to consider whether it should make an order, under 102NA of the Family Law Act 1975 (Cth) (“the Act”), to permit the mother to obtain representation through Legal Aid via Commonwealth funding, and that this would result in the adjournment of the proceedings. The mother indicated that she wished to have that opportunity, and that if that opportunity was given, she would take steps to contact Legal Aid with the benefit of the order, to obtain that representation.
Mr Schonell, on behalf of the father, opposed the making of any order under 102NA of the Act, and has advanced the proposition that it would be an erroneous construction of section 102NA to find that it has application in these proceedings given that the cross-examination of the father has, at this point of time in the proceedings, concluded. Mr Schonell invited the Court to adopt a construction of ss (1)(a) to the effect that, once the cross-examination of a relevant person, the perpetrator of family violence, had concluded, there would be no entitlement to meet the criteria under 102NA of the Act. Mr Schonell sought to place reliance on both the second reading speech with Senate in respect of the Family Law Amendment (Family Violence and Cross-examination) Bill 2008 and the language of the Act in support of that construction.
s 102NA is identified in the second reading speech in the House of Representatives and in the Senate as a provision intended to benefit those who are the victims of family violence, as such, in both the House of Representatives and in the Senate, it should be given a beneficial construction. On the face of the s 102NA (1)(a) of the Act, the language does not specify in that paragraph that a party is to be taken to be only the party who has alleged family violence. The construction advanced by Mr Schonell requires the Court to read in words of limitation as to the meaning of "party", and in essence, to imply, inconsistent with the language in the Act, that it is referring to a party personally intending to cross-examine. It does not say so. The Court asked Mr Schonell whether he intends to continue cross-examining Ms Cho, and he informed the court, "yes."
In those circumstances, the criterion under ss (1)(a) is met. First, there is a party that intends to cross-examine another party. The criterion of ss (b) is met in that there is an allegation of family violence between the examining party and the witness party. There is then a criterion in relation to ss (c) which identifies any of the following are satisfied. Section (iv) gives the Court a discretion to make an order that the requirements of subsection (2) are to apply to cross-examination, see Naisby & Naisby (No 2) [2024] FedCFamC1F 699 at [9-11].
The Court accepts that discretion only arises where the criteria under paragraph (a) and paragraph (b) are met. It is important in the construction of s 102NA, to take into account the language found in ss (2) which makes reference to the concept of a "party personally" and identifies statutory language in that regard that requires the cross-examination to be conducted by a legal practitioner acting on behalf of the examining party.
The fact that there is a legal practitioner acting on the part of the cross-examining party at this point of time does not mean that the requirements of ss (1)(a) are not made out. Further, the reference to a "party personally" in ss (2)(a) reinforces that no narrow construction should be adopted to s 102NA (1)(a) of the Act. The purpose behind the provision, as revealed by the second reading speech in both the House of Representatives and in the Senate and, indeed, the explanatory memorandum, is one best advanced by giving those words their plain and ordinary meaning that would have the broad effect that the Court has identified. The Court does not accept the contention advanced by Mr Schonell that the Senate second reading speech supports a narrower construction of the words found in ss (1)(a).
This is a case where the Court does propose to make an order that the requirements of ss (2) are to "apply to the cross-examination". Those words still have work to do: they mean that the continued cross-examination in this case of the alleged perpetrator of the alleged victim must be done by a legal practitioner. The provision still has application notwithstanding that the perpetrator has been represented by legal counsel since the commencement of the hearing.
That does not mean that the provision does not have an important and significant impact in relation to the continuation of these proceedings. As the Court has identified, if it had been informed that there was no intention to further cross-examine the mother, the Court accepts that the criterion under s 102NA(1)(a) would not be made out. Given the intention to cross-examine, the criterion, on its face, is met, and the Court regards this as enlivening the Court's discretion to make an order under ss (1)(c)(iv).
Mr Schonell has submitted that the proceedings were ones which should continue given that it would have been open, for the mother to obtain legal representation because of orders that the Court has made in respect of interim property distribution and the subsequent funds obtained. Whatever it is that those funds have been applied towards, it does not detract from the reality that the wife identified she had attempted to contact Legal Aid to obtain representation and had been unsuccessful.
This is not the occasion in which the Court is persuaded it is appropriate to delve into what the wife has done with the funds which were provided to her. There is no requirement in respect of s 102NA that a party must be unable to afford their own representation. True it is that the second reading speech identifies an expectation of hope that that will occur, but it does not assist in the construction of the provision sought to be advanced by Mr Schonell. There are no words in s 102NA of the Act that requires a party to engage their own legal representation when that provision has application to the circumstances. Accordingly, the Court rejects the construction argument advanced by Mr Schonell that there is no power to make the order in the present case.
Further, the Court raised with Mr Schonell that the opening words of s 102NA refer to "if, in proceedings under this Act". These are proceedings under the Act, and the provision had application at the time the matter was fixed for hearing. Mr Schonell contended that it is not every case where family violence is raised that an order is made under s 102NA. That proposition is correct. However, the proposition that it is not ordinarily one that can be made at any point of time when it emerges that there is satisfaction of the criteria is one the Court does not accept.
Further, in relation to whether the Court should make the order in the present case, the Court finds that the allegations of family violence are ones in respect of the property proceedings that now have a much greater significance given the statutory change that occurred on 10 June 2025, where family violence is now a relevant factor under the s 79 statutory formula that now applies. The proposed legislative change has been the subject of anticipated amendments that mean that this is a case that when it was fixed for hearing, if the risk of a party becoming unrepresented had been appreciated, the Court would, in fact, have made an order under s 102NA of the Act.
The Court regards that as a further independent ground upon which, even if a narrower construction had been adopted, it is nonetheless appropriate, given the reference to "in proceedings under this Act", to find that an order under s 102NA of the Act should have been made in this case, given the anticipated application of the amendments, and the risk that these proceedings may have not concluded prior to the introduction of those anticipated amendments. The Court finds this is a further reason why, in the present case, it is appropriate to make an order under s 102NA.
It was submitted by Mr Schonell that it is unfair to the husband at this stage of the proceedings to make an order that gives rise to an adjournment. Contrary to the submission advanced by Mr Schonell, procedural fairness in these proceedings requires the wife to be given the opportunity, if she seeks it, to obtain the legal representation through s 102NA of the Act which she would be entitled to. The continuation of these proceedings with the cross-examination of the wife and the issue of submissions are inevitably better advanced in the conduct of the proceedings, if representation has been obtained.
Where, as the Court has found, the wife is entitled to the application of s 102NA, it would be an injustice and procedurally unfair to force a continuation of the proceedings where the wife is now unrepresented and was seeking Legal Aid. The Court gave the parties an opportunity to have discussions before determining the issue under s 102NA of the Act that was raised at the commencement of the hearing today.
It is for these reasons the court makes the following orders.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 30 July 2025
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