Thompsett and Keen and Ors

[2019] FamCA 673

FAMILY COURT OF AUSTRALIA

THOMPSETT & KEEN AND ORS [2019] FamCA 673

FAMILY LAW – PRACTICE AND PROCEDURE – Application of s 102NA of the Family Law Act 1975 (Cth) – where there are significant allegations of family violence made by the 1^st Respondent against the 2^nd Respondent – where the family violence has not been proven – where the allegations of family violence are of such a nature that they justify a ban on personal cross-examination.

Family Law Act 1975 (Cth) s 102NA.

APPLICANT: Mr Thompsett

1^st RESPONDENT: Ms Keen

2^nd RESPONDENT: Mr Pemberton

3^rd RESPONDENT: Ms J

INTERVENOR: Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Mills Oakley

FILE NUMBER: CAC 678 of 2016

DATE DELIVERED: 16 September 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 16 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Elringtons

SOLICITOR FOR THE 1^ST RESPONDENT: Dillon-Smith Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT: Self-representing

SOLICITOR FOR THE 3^RD RESPONDENT: Sam Mason Legal Pty Ltd

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

Orders

1. The provisions of s 102NA(2) apply to the hearing of this matter in respect of Mr Pemberton and Ms Keen.

2. The proceedings are adjourned for further directions on 16 October 2019 at 3pm and the parties are granted liberty to appear by telephone on that occasion, provided they make arrangements with the Canberra Registry of the Family Court of Australia seven days in advance of their intention to do so too. 

3. It is anticipated that on that occasion the parties will advise the Court as to whether they have been successful in securing the funding for Dr G to prepare a further report.

4. It is requested that 14 days in advance of that date the Independent Children's Lawyer circulate to the other parties a proposed minute setting out the terms of reference for Dr G's report.

5. The Independent Children's Lawyer is at liberty to issue such subpoenas as are necessary for the preparation of the matter and following production is at liberty to exercise photocopy access provided there is no objection to access and to provide any photocopy material to Dr G.

IT IS NOTED THAT

1. The position of the Secretary is that an order for B to live with Ms J is inconsistent with an order for sole parental responsibility directed to the Secretary.

IT IS FURTHER ORDERED THAT

1. The parties are at liberty to seek an urgent relisting of this matter on short notice via the Registrar of the Family Court of Australia Canberra Registry.

2. Mr Pemberton is to file and serve within 14 days of today a response setting out the orders that he seeks at the final hearing.

IT IS NOTED THAT

1. There is shortly to take place a family conference in respect of the care arrangements for B.

2. The Secretary will notify the Independent Children's Lawyer and solicitors for the other parties of the proposed conference and of the outcome of the conference, noting that the conference could result in a new carer being allocated for B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompsett & Keen and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 678 of 2016

Mr Thompsett

Applicant

And

Ms Keen

1^st Respondent

And

Mr Pemberton

2^nd Respondent

And

Ms J

3^rd Respondent

And

Department of Communities and Justice

Intervenor

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

1. The parties have filed various outlines of the orders that they seek in relation to this matter. 

2. In relation to the child B, each of the parties seeks that the Secretary exercise sole parental responsibility.  There is however, a contest within that as to where B will live. 

3. The paternal grandmother seeks that an order be made that B live with her, B currently being in arrangements made by the Secretary.  The paternal grandmother's position is supported by Mr Pemberton, the Father of B.   Under those circumstances he says that he would seek to see B whenever he was able to do so.  At present Mr Pemberton, who has not taken part in the bulk of the proceedings but who indicates that he will take part in the final proceedings, is legally unrepresented, although he says that he has filed an application for Legal Aid.  It is unclear whether or not he will receive a grant of legal assistance.

4. An issue has arisen as to the application of s 102NA of the Family Law Act1975 (Cth) (“the Act”) in these proceedings. The mandatory restriction against a person personally cross-examining is not activated in these proceedings as there is no current domestic violence or family violence order in place between Mr Pemberton and Ms Keen, the Mother of B. However, this is a case in which there are significant allegations of family violence. As has been pointed out by Mr Pemberton, there is some conflict in relation to those allegations. Ms Keen reported to Dr G, the Single Expert in the proceedings, in a report that was filed on 9 May 2017, that in relation to her relationship with Mr Pemberton “although their marital arguments were vicious she denied that Mr Pemberton was physically violent". Sitting perhaps uncomfortably with that is a recitation of violence set out in Ms Keen's affidavit sworn 7 September 2019. At paragraphs 241 and following, Ms Keen sets out severe allegations of family violence that she alleges were perpetrated upon her by Mr Pemberton. A cursory perusal of those renders it unclear as to whether or not in that affidavit Ms Keen is saying anything inconsistent with what she said to Dr G that is, it is not clear that she is alleging actual physical violence on the part of Mr Pemberton.

5. As is clear from the Act, family violence involves behaviour far beyond that which can be described as physical violence. Physical violence is but one manifestation of family violence. The heart of family violence is the exercise of conduct which is coercive, controlling or liable to cause a person to be in fear. What is articulated by Ms Keen in those paragraphs are severe forms of coercion or control which, if true, constitutes severe instances of family violence. Under those circumstances again, if those allegations are in fact true the personal cross-examination of Ms Keen by Mr Pemberton is inappropriate given the objectives of the provision to protect persons under such circumstances from that direct contact in that manner. Accordingly, although the allegations have not yet been proven they are of significant severity and are indicative that in this instance a discretionary order should be made to prevent Mr Pemberton from personally cross-examining Ms Keen.

6. Accordingly, it is ordered that the provisions of s 102NA apply to the hearing of this matter in respect of Mr Pemberton and Ms Keen.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 September 2019

Associate: 

Date:  17 September 2019