Upton and Everett & Ors [2020]

[2020] FamCA 805

FAMILY COURT OF AUSTRALIA

UPTON & EVERETT AND ORS [2020] [2020] FamCA 805

FAMILY LAW – PRACTICE AND PROCEDURE – consideration of section 102NA prohibition on cross-examination.

Family Law Act 1975 (Cth) s 102NA

APPLICANT: Ms Upton

1st RESPONDENT: Mr Everett

2nd RESPONDENT: Mr C Everett

3rd RESPONDENT: Ms B Everett

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 2364 of 2011

DATE DELIVERED: 23 September2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 23 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Hogg & Associates Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: In Person

SOLICITOR FOR THE 2ND RESPONDENT: In Person

SOLICITOR FOR THE 3RD RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Webber

Orders

IT IS ORDERED

1. That the application of the mother for orders pursuant to s 102NA of the Family Law Act1975 (Cth) is dismissed.

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 Upton & Everett 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 SYDNEY

FILE NUMBER: PAC 2364 of 2011

Ms Upton

Applicant

And

Mr Everett

1^st Respondent

And

Mr C Everett

2^nd Respondent

And

Ms B Everett

3^rd Respondent

REASONS FOR JUDGMENT

1. In this matter, which is listed before me for the allocation of hearing dates on 4  December 2020, the father acts for himself.

2. The proceedings relate to parenting arrangements for two children now aged 16  years and 13 years who live with their mother. She seeks to discharge orders which were made in defended proceedings in 2015 which provided for the subject children to spend supervised time with their father. Neither child has spent time with the father since 2015.

3. The mother has made an application for an order pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) which would preclude the father from cross-examining her in person. The father opposes that application, as does the Independent Children’s Lawyer (“ICL”).

4. She makes the same application in relation to the paternal grandparents who are parties to the proceedings seeking time with their grandchildren. They oppose the application as does the ICL.

5. The Act provides:

   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.

6. It is not in dispute that the provisions of ss (c)(i), (ii) and (iii) are not satisfied.

7. Thus the only basis upon which an order could be made is the discretionary basis pursuant to ss (c)(iv).

8. The parties have filed their trial affidavits and each has made written submissions in relation to this issue. The application is to be determined in Chambers without further representations.

9. The mother makes one allegation of family violence directed to her by the father. She deposed that after attending a session of family therapy in September 2017, the father said to her, “The noose is getting tighter” and in a forceful and angry tone “We all know what you’ve done. You’re going to get what’s coming. Watch out.”

10. She deposed that she felt intimidated and frightened and believed that the father “could physically hurt me”. 

11. There is no evidence of any other act of family violence directed towards the mother.

12. The mother also relies on the following passages from the judgment of Stevenson J in 2015 where her Honour stated:

    115.All of these matters persuade me that the father labours under a sense of grandiosity and self-entitlement.  I accept the opinion of Dr DD that he has an impaired capacity to recognise and respect appropriate personal boundaries.  As noted above, the mother told police officers in 2009 that she believed that the father “had boundary issues”.  I consider also that he casts himself as the victim of gross injustice, for which he blames the mother and Ms L.  In my view, there is a need to protect the children from potential psychological harm due to exposure to these characteristics of the father.

    176.I have set out above my view that there is a need to protect E and F from potential psychological harm in the unsupervised care of the father and my reasons for reaching that conclusion.  I am conscious also of the real risk that Ms L will react adversely to the children spending time with the father, with flow-on effects for them.  I am also mindful of the impact upon the children’s primary carer of them spending time with the father, in circumstances which create for her concern for their well-being.

    190.I am conscious of Dr DD’s prediction that the children will seek the father out at the age of sixteen to eighteen years.  It seems to me to be in their best interests that steps be taken now to regulate that process and establish an environment which safeguards the psychological well-being of the children.  I include in this consideration the need to protect them from Ms L’s potential adverse reaction and undermining of the mother’s ability to fulfil the role of primary carer.

13. However, nothing in these passages constitutes a finding that there has been family violence perpetrated by the father against the mother.

14. The purpose of the legislation is made clear in the Explanatory Memorandum:

    Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to personally cross-examine their alleged perpetrator due to the power imbalances created by family violence.

15. I do not accept that the evidence of the mother in relation to family violence is such that it is necessary to afford her protection under s 102NA.

16. In relation to the application sought against the paternal grandparents, the mother makes no allegation of family violence against them and no submissions in support of the application. There is no basis upon which an order should be made as sought.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 September 2020.

Associate:

Date:  23/09/2020