Tisdale & Warner
[2023] FedCFamC1F 401
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tisdale & Warner [2023] FedCFamC1F 401
File number(s): CAC 78 of 2021 Judgment of: GILL J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –
S 102NA – Discretionary ban on cross-examination conducted personally – Where there are mutual allegations of family violence, most specifically experienced by the mother.
Legislation: Family Law Act 1975 (Cth) - s 102NA Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 19 May 2023 Place: Canberra Solicitor for the Applicant: Ms Provost, KPW Lawyers Solicitor for the Respondent: Ms Rands, Karen Rands Legal Solicitor for the Independent Children's Lawyer: Ms Thomas, Legal Act NSW, Wagga Wagga ORDERS
CAC 78 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TISDALE
Applicant
AND: MS WARNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.The Independent Children's Lawyer (the ICL) is granted leave to issue a subpoena directed to the Child and Adult Mental Health Service (CAMHS) of New South Wales.
2.In the event that material is produced from the CAMHS then no access is to be granted to such material without specific application to a Judicial Registrar, a Senior Judicial Registrar or Judge of this Court is to occur.
3.I order that the provisions of s 102NA(2) apply meaning that the examining party must not cross-examine the witness party personally and the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
4.The trial in this matter is listed to commence at 10 am on 6 November 2023 at the City B courthouse.
5.A period of five days is reserved for the trial but the trial at this stage is listed only for a period of three days.
6.The mother is to file and serve a single consolidated trial affidavit from herself and each witness that she intends to rely upon by 4 pm on 22 September 2023.
7.The father is to file and serve a single consolidated affidavit from himself and each witness that he intends to rely upon by 4 pm on 20 October 2023.
8.Failure of the parties to comply with the above directions may result in the matter being either dismissed or listed for summary disposition.
9.The matter will be relisted at a date to be fixed for further trial directions before a Judicial Registrar.
10.The parties are to forthwith take all necessary steps to engage with the Legal Aid Office of New South Wales in order to secure their representation pursuant to the scheme related to s 102NA of the Family Law Act 1975 (Cth).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
Application is made by the mother that the discretionary provisions of s 102NA(1) of the Family Law Act 1975 (Cth) are applied in the sense of making an order pursuant to subsection (2) prohibiting the personal cross-examination by the parties of the other party. A number of factors have been identified by the parties and in the material. I note that in identifying these factors it is the position of each of the parties and the Independent Children's Lawyer (ICL) that I should make an order pursuant to the discretionary power at 102NA(1)(c)(iv).
It is apparent that the mandatory provisions do not apply. There is no current family violence order. There is no current injunction that has been identified to me pursuant to s 68B or s 114 of the Act, nor is there a conviction of either party nor does either party currently face a charge of an offence involving violence or a threat of violence to the other party.
This is however a matter in which there are allegations of family violence between each of the parties which enlivens the capacity to exercise the discretion. A number of those allegations can be seen in the Notices of Child Abuse Family Violence Risk that have been filed by each of the parties, being by the mother on 11 March 2021, and by the father on 17 December 2020. Each asserts that the other has perpetrated family violence in the form, principally it seems, of emotional abuse and of exposing the other party to family violence. This is also a case where while there is no current family violence order in place there has previously been a family violence order, being an ADVO in place for a period of two years which expired on in late 2020, which was for the protection of the mother and directed against the father.
Further, the mother in her affidavit material has indicated that she has experienced frightening behaviour on the part of the father, that she is frightened of him, that she considers him to have engaged in controlling conduct towards her, that she has experienced him losing his temper which has in turn caused her to be frightened.
Further, in her interviews with the single expert she has described that she has experienced flashbacks of a sexual assault that she asserts was perpetrated by the father upon her. Again to the single expert she has recorded that she has been the victim of verbal abuse, denigration and controlling behaviour on the part of the father which has caused her to be fearful. The material also indicates that she has previously described again being frightened of the father and of him having threatened to bash her post separation.
The various assertions of family violence made by the parties are in a further context where each of the parties presents as being highly vulnerable. The mother presents as a person who asserts that she has previously been the subject of sexual violence prior to the relationship, while the father presents as a person who suffers from an intellectual disability. It is against this background that the various allegations made by the parties should be considered. They should be considered against that background, because that background shapes the capacity of the parties to engage in the personal cross-examination of each other, or to experience being personally cross-examined by the other. That is, the parties are to be taken in the context of their own vulnerabilities.
One of the primary purposes of s 102NA is, in addition to protecting the parties from being retraumatised in cases that involve allegations of family violence, to ensure that the integrity of the proceedings are protected by ensuring that they are not compromised by subjecting parties to cross-examination by another party where the party being cross-examined or the party engaging in cross-examination is the subject of vulnerability which is in part imposed upon them by a history of family violence which undermines their capacity either to be cross-examined or to perform the cross-examination. This is such a case to a degree that justifies the discretionary application of s 102NA.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 May 2023
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