TINSLEY and LEWIS

[2022] FCWA 126

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: TINSLEY and LEWIS [2022] FCWA 126

CORAM: O'BRIEN J

HEARD: 21 JUNE 2022

DELIVERED : Ex tempore

PUBLISHED : 10 NOVEMBER 2022

FILE NO/S: [Redacted]

BETWEEN: MR TINSLEY

Applicant

AND

MS LEWIS

Respondent

Catchwords:

EVIDENCE - Where proceedings are listed for trial and the mother applies for a discretionary cross examination ban pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) - Where it is common ground that a mandatory ban is not triggered - Discussion of matters relevant to the exercise of the discretion - Order made as sought - Turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Ms A
Independent Children's Lawyer	:	Mr B

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Law Firm A
Independent Children's Lawyer	:	Law Firm B

Case(s) referred to in decision(s):

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Dietrich v The Queen (1992) 177 CLR 292

Director of Public Prosecutions (DPP) (WA) v Williams (2007) 35 WAR 297

Lee v The Queen (1998) 195 CLR 594

Owen & Owen (2020) 60 Fam LR 334

Unions NSW v New South Wales (2019) 264 CLR 595

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication by this Court under the pseudonym Tinsley and Lewis has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 of the Family Court Rules 2021 (WA).

1The parenting proceedings between [Mr Tinsley] ("the father") and [Ms Lewis] ("the mother") regarding [Child A] born [in] 2017, are listed to proceed to a trial before the Honourable Justice Berry [in] August 2022. The parties have filed their trial materials and are ready to proceed as scheduled.

2The mother presently lives in [State A] with Child A, having moved there without the father’s consent after the parties separated. She proposes final orders whereby Child A would continue to live with her in State A and she would have sole parental responsibility for him. She does not propose any orders for Child A to spend time with the father but does propose orders for them to communicate regularly.[1] That said, on 3 March 2022 the mother consented to interim orders providing for Child A to spend time with the father for short periods, supervised by the maternal grandfather, in Sate A. She consented to further interim orders along those lines, providing for additional time, on 2 May 2022. It may be that her final proposals will alter prior to or at trial.

[1] Mother’s Amended Form 1A Response filed 11 November 2021.

3The father lives in [Western Australia]. He proposes final orders for equal shared parental responsibility. His primary position is that the mother should be ordered to return to live in Western Australia with Child A, who should then live in an equal shared care arrangement between the parties. A number of secondary or alternative positions are put in his documents; they do not need to be recounted for present purposes.[2]

[2] Father’s Minute of Proposed Final Orders filed 2 May 2022.

4The mother is presently represented under a grant of legal aid. The father is self-represented.

5The matter requiring determination is the application of the mother filed on 26 May 2022 in which she seeks an order pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth). That section of the Act enables the court to exercise a discretion to prohibit personal cross-examination of either party by the other, such that any cross-examination must be conducted by a legal practitioner ("discretionary ban").

6The father did not file any documents in response to the application. At the hearing this afternoon he told me that he did not actively oppose it. He is contemplating instructing counsel to represent him at trial in any event, and for obvious reasons would be content if the provision of that representation was funded.

7The Independent Children’s Lawyer ("ICL") similarly did not file any documents in response to the application. At the hearing this afternoon he told me that he supported the imposition of the discretionary ban.

8It is common ground that each party would seek that the other be cross-examined at trial. Both parties allege family violence during the relationship. Neither has been convicted of, or is presently charged with, any offence involving violence or a threat of violence to the other party. There is no current family violence order in place, nor is there any order under the Act for the personal protection of either party. The factual circumstances which could trigger a mandatory application of s 102NA(2) are accordingly not present.

The relevant legal principles

9Once it is established that the relevant party seeks to cross-examine the other, and that there is an allegation of family violence between the parties, the discretion is enlivened. Once enlivened, the discretion is unfettered by any prescribed statutory considerations. It may be exercised on the application of either party, an ICL, or on the court’s own initiative.

10The discretion is enlivened by an allegation of family violence. No finding that family violence has occurred is required.[3]

[3] See for example Owen & Owen (2020) 60 Fam LR 334 per Gill J at [9] in relation to the identical provision in the Family Law Act 1975 (Cth).

11The exercise of the discretion is appropriately informed by a consideration of the object and purpose of the relevant provisions.[4] That consideration may be informed by reference to relevant extrinsic material, including the Explanatory Memorandum which accompanied the Bill by which the provisions were enacted,[5] even where the words of the statute are not ambiguous.

[4] See Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 per Gageler J.

[5] See Unions NSW v New South Wales(2019) 264 CLR 595 per Edelman J at [169]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

12The purposes of the cross-examination ban provisions are to reduce trauma to family violence victims and improve the quality of evidence given while maintaining procedural fairness for both parties.[6] All three elements are important. Self-evidently, to the extent possible victims of family violence should be protected from re-traumatisation through the court process. The quality of decision-making, particularly in cases involving the welfare of children and allegations of risk, can only be enhanced both by parties being able to give clear and cogent evidence including under cross-examination, and by that evidence being appropriately tested. The centrality of cross-examination to the trial process[7] requires that parties have the proper opportunity to cross-examine albeit that entitlement is not absolute.[8]

[6] See the explanatory memorandum to the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018.

[7] Lee v The Queen (1998) 195 CLR 594, [32].

[8] Dietrich v The Queen (1992) 177 CLR 292.

13In my view, the discretion is not appropriately informed by reference to possible funding issues. Where consistent with the objects of relevant legislation, a court contemplates orders which will require the provision of publicly funded services, it is entitled to, and must, assume that "the executive will perform its function" by the provision of those services, since Parliament has made provision for them.[9] Consistently with that, eligibility for the relevant assistance scheme is not subject to any means or merit-based test.

The mother’s evidence

[9] Director of Public Prosecutions (DPP) (WA) v Williams (2007) 35 WAR 297, [81].

14The mother says that she experienced family violence throughout a significant part of the relationship. She describes verbal arguments, the father standing over her and intimidating her, and an occasion when after an argument he punched a wall and broke bones in his hand. She describes various sexual demands and acts of physical aggression, including an occasion in 2016 where she alleges that the father tried to strangle her. She acknowledges having retaliated on occasions.

15The mother describes an incident about one month prior to separation in November 2020 when an argument escalated into a physical altercation, in which she says the father pushed her against the wall, grabbed her tightly enough to leave bruises, and pushed her to the floor causing her to hit her face on the corner of the bed and suffer bruising. She describes earlier erratic, aggressive and unpredictable behaviour on the part of the father, and verbal abuse including telling her during an argument that she should kill herself. She describes picking up a kitchen knife during that argument and threatening to hurt herself with it. She describes another incident in which she acknowledges she behaved aggressively, saying that the father responded by punching her in the ribs and throwing her against a wall. She raises further issues regarding alleged (and to an extent admitted) use of methamphetamines by the father, and associated behaviour.

16The mother also acknowledges having experienced family violence in a previous relationship which ended in 2009.

17The mother says that following separation she continued to attend upon a clinical psychologist for grief counselling commenced after [a miscarriage]. She had been diagnosed with postnatal depression, anxiety, and post-traumatic stress disorder. She had sought assistance from [a Family Violence Centre] before leaving Western Australia and says that she continues to receive weekly family violence counselling in State A.

18She describes herself as being "very scared" of the father, finding him "physically intimidating", and the idea of being in the court room with him as "terrifying". She expresses a fear that she will have "a physical response" to being personally cross-examined by him and says that she is worried that she will not be able to answer his questions. She is presently represented under a grant of legal aid but expresses the fear that if the funding does not extend to trial, she will be incapable of personally cross-examining the father in any adequate way.

19The mother notes that she was supported by her clinical psychologist in an application for early termination of her residential tenancy in January 2021 by reference to her report of family violence, and that she was granted an exemption from seeking child support on the same grounds.

Relevant evidence from the father

20While the father did not file documents responding to the present application, his trial affidavit was filed very recently. In that affidavit he acknowledges that the mother suffers from anxiety, while expressing uncertainty as to whether that stems solely or even predominantly from issues arising from the relationship. He denies ever forcing the mother into any form of sexual activity. He denies any form of financial coercion.

21The father makes allegations of family violence against the mother, noting reference in medical records produced under subpoena to her exhibiting "increased dis-regulated behaviour, agitation with increasing aggression" in late 2017, including the incident in which she says she threatened to harm herself with a knife, and he says she threatened him. He says that many of the behaviours attributed to him by the mother are in fact behaviours exhibited by her. That said, he acknowledges that on one occasion he kicked the mother in the upper thigh after a long argument in which he says she punched him in the head twice.

Relevant other evidence

22The parties participated in a case assessment conference on 1 October 2021. The report of the family consultant is in evidence and notes many of the matters already referred to earlier in these reasons. It notes further that the father acknowledged his own history of poor mental health, including a hospital admission for "drug induced mental health issues" in or about 2005. More recently he had been under the care of a psychiatrist who prescribed medication for depression and anxiety, and had undergone counselling directed towards relationships, anger management and general life stressors.

23The father acknowledged having used methamphetamine approximately once a fortnight after separation, saying that he ceased doing so in or about May 2021. He became teary at various times during the interview with the family consultant. He expressed continuing concerns about the mother’s mental health. The family consultant expressed particular concern about the father’s mental health.

24The Single Expert Witness ("SEW") in the proceedings, [Dr C], was appointed by consent on 4 November 2021. In his report lodged with the court on 6 January 2022 he described the mother as an intelligent and articulate person who seemed to go to great lengths to cast the father in an exceedingly negative light. He said that when asked about family violence, she acknowledged that both she and the father had perpetrated altercations. She acknowledged having been diagnosed with depression at the age of about 15, and with post-traumatic stress disorder and anxiety in approximately 2019. She acknowledged a suicide attempt in the context of family violence with the father in 2013.

25Dr C described the father as a rather serious and intense person who was quite verbose in his responses but nevertheless candid and straightforward. The father acknowledged family violence in the relationship while saying that the mother was the perpetrator of all altercations. He was first diagnosed with depression and anxiety at the age of 14, and with post-traumatic stress disorder in May 2021. The father told Dr C that he had been hospitalised for psychiatric purposes on approximately five occasions and had attempted suicide twice.

26It may fairly be observed that Dr C expressed some scepticism in relation to the mother’s allegations of family violence and her assertions as to its impact on her. He called into question her motivations for doing so. I make no findings in that regard, and no doubt those matters will be the subject of exploration at trial.

Discussion and conclusion

27As earlier noted, it is not necessary for present purposes to make any finding as to where the truth lies in the conflicting allegations of the parties as to the family violence between them.

28It is not possible to make clear findings on disputed facts in the absence of the opportunity for the conflicting evidence to be tested under cross-examination. The expressed scepticism of Dr C in relation to the mother’s narrative must be viewed in that context.

29It is regrettable that, in circumstances where the mother is on her case receiving ongoing counselling and therapy in relation to issues arising from family violence, no evidence has been adduced from those treating or assisting her. The required consideration of the potential impact on her of personal cross-examination would have been assisted by independent evidence of that nature. The court should, in my view, be able to anticipate that such evidence will be adduced where the applicant for a discretionary ban is represented.

30Nevertheless, the relevant discretion must be exercised in the context of the evidence presently available. The consequences which would follow from each of the possible choices inform that consideration.

31If a discretionary ban is not imposed, and it transpires that the mother’s evidence as to family violence and the impact of it on her is accepted at trial, the potential for her to be retraumatized by personal cross-examination by the father is clear. The fact that the father has, in all hearings before me to date, conducted himself entirely appropriately does not alter that; his self-representation in court to date has been limited to the making of submissions and to exchanges with judicial officers. Cross-examination of a former partner, particularly in circumstances where he is aggrieved by her actions post separation, is an entirely different proposition.

32Even if the mother’s evidence is not wholly accepted at trial, the father’s own evidence as to her mental health issues supports an apprehension that she would be traumatised by personal cross-examination by him.

33If the mother is traumatised by personal cross-examination, that in turn would have the clear potential to affect the clarity and detail of her evidence. If her legal aid funding does not extend to trial, so that she is placed in the position of personally cross-examining the father, there is a clear risk that she may be inhibited and ineffectual in doing so. Either scenario has the potential to diminish the quality of the decision-making process and accordingly to impact on Child A.

34If a discretionary ban is imposed, those potential issues are obviated to the extent possible. If it transpires that the mother’s evidence is not fully accepted at trial, frankly no harm will have been done. Equally, there is no prejudice to the father in the imposition of a discretionary ban in circumstances where that will entitle him to funded access to legal representation. In circumstances where the SEW has reported, and both parties have filed their trial materials, it was not suggested to me that the trial would be delayed by that process.

35On balance, I am satisfied that it is appropriate to exercise the discretion as sought.

Orders

UPON the Court noting that both parties have indicated an intention to cross-examine the other at the trial of the proceedings, and that there is an allegation of family violence between them:

AND further noting that the parties have each been notified by the Court:

(a)that pursuant to the following order, neither party is permitted to cross-examine the other party personally;

(b)that pursuant to the said order, any cross-examination of either party must 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;

(d)that a copy of these orders will be provided by the Court to Legal Aid Western Australia, which administers the said scheme; and

(e)that Legal Aid Western Australia will be advised that the Respondent is currently represented by a legal practitioner.

It is ordered that:-

1.The requirements of s 102NA(2) of the Family Law Act 1975 (Cath) will apply to any cross-examination occurring in the proceedings.

2.The Court forthwith cause a copy of this order and reasons (once available) to be forwarded urgently to Legal Aid Western Australia to facilitate access by both parties to the relevant funding scheme.

3.Within 14 days from the date hereof, the Respondent mother, [Ms Lewis], file and serve an updated minute specifying the final orders to be sought by her at trial, such minute to stand as if a formal amendment of her response.

4.Within 14 days thereafter the Applicant father, [Mr Tinsley], file and serve an updated minute of the final orders to be sought by him at trial, such minute to stand as if a formal amendment of his application.

5.The Form 2 application filed by the Applicant on 26 May 2022 otherwise be dismissed.

These reasons are the reasons for decision delivered on

21 June 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate to the Judge

24 JUNE 2022