Velderman & Velderman

[2021] FamCA 207

FAMILY COURT OF AUSTRALIA

Velderman & Velderman [2021] FamCA 207

File number(s):

SYC 7114 of 2017

Judgment of:

HENDERSON J

Date of judgment:

21 April 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where there are allegations of family violence – Where none of the provisions in s 102NA(1)(c)(i), (ii) or (iii) apply – Where the granting of the order is discretionary – Application granted – Order banning the husband from personally cross-examining the wife.

Legislation:

Family Law Act 1975 (Cth) s 102NA, s 102NB

Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018  

Cases cited:

Owen & Owen (2020) 60 Fam LR 334

Upton & Everett and Anor [2020] FamCA 805

Number of paragraphs:

42

Date of hearing:

8 April 2021

Place:

Sydney

Counsel for the Applicant:

Appeared in person

Counsel for the Respondent:

Ms Tabbernor

Counsel for the Independent Children's Lawyer:

Mr Moore

ORDERS

SYC 7114 of 2017

BETWEEN:

MR VELDERMAN

Applicant

AND:

MS VELDERMAN

Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	21 APRIL 2021

THE COURT ORDERS THAT:

1.I declare pursuant to section 102NA(1) of the Family Law Amendment (Family Violence and Cross Examination of Parties) Act 2018 that:

(a)The father is prohibited from personally cross-examining the mother in these proceedings having regard to the allegations of family violence perpetrated by the father against the mother.

2.The father is entitled, in terms of conducting a final hearing, to obtain legal representation via the Legal Aid Commission of New South Wales to represent him in the final trial.

3.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.

4.And further noting that the parties have each been advised by the Court:

(a)that pursuant to those requirements, neither party may cross-examine the other party personally;

(b)that pursuant to those requirements, any cross-examination of either party may 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; and

(d)that a copy of these orders will be provided by the Court to the relevant authority in New South Wales, which administers the said scheme.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

1. This is an application by the wife for a declaration pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”) that her husband be prohibited from cross-examining her at trial. The husband is self-represented.

2. The husband objected to such a declaration and sought I make a declaration pursuant to section 102NB of the Act.

3. Ms Tabbernor of counsel represented the wife, Mr Moore represented the child and the husband represented himself.

4. The Independent Children's Lawyer supported the wife's application.

5. The material I read was as follows:

   (1)The Family Report prepared 8 August 2019;

   (2)Affidavit of the wife's treating trauma therapist, Ms V, affirmed 30 July 2019;

   (3)The parties’ respective Parenting Questionnaires;

   (4)The wife's affidavit of 14 June 2018; and

   (5)The husband's affidavit of 17th February 2021.

6. The wife alleges in her Parenting Questionnaire that the husband intimidated her during the marriage and that this behaviour continues.

7. In the Family Report, the wife alleged at paragraph 21 she was subjected to family violence, including emotional and sexual abuse, by the husband. That he would sexually assault her by attempting to rape her, would come into her bedroom, lay down on top of her and refuse to let her leave. That she feared he would sexually assault her and she attempted to placate him. She did not report this behaviour to the police on these occasions as she feared his reaction.

8. Further, that the husband attempted to control her behaviour by isolating her from family and friends and he demanded she answer his phone calls at all times, and that he threatened to kill himself when she told him the relationship was over.

9. In her affidavit of 14 June 2018, the wife attaches a “Sexual Assault Questionnaire” in which she sets out the allegations of three alleged indecent assaults, which questionnaire was completed by her in November 2017.

10. The first alleged indecent assault occurred on 31 July 2016. The parties had just separated for the first time and the husband had left the home. The husband asked the wife and children to attend an outing and she accepted. He continually asked her to hug him. He took their one year old child into a jumping castle, asked her to come in with him and pulled her down to sit on his lap where she felt his erect penis. The wife said she felt violated. He apologised to her in the car when he took her and the child home.

11. The second alleged indecent assault was on 5 November 2016 whilst the parties were still separated for the first time. The parents took the children, aged one and three, on an outing to a park. While the children were playing at the park the husband said he felt sick and sat on a park bench. He asked the wife to sit on his lap and she said “no.” He grabbed her hand and tried to pull her down to sit on his lap and told her he had erection and that it had to go down before they could leave the park.

12. The third alleged indecent assault was in July 2017, just after final separation and whilst the parties were residing in the one home but separated. The wife was in bed in her own bedroom. The husband came into the room and asked her to make love to him. He trapped her in the bed and rubbed her breasts and groin. The wife asked him to stop and he persisted, saying “I know you want it.” The wife said she removed his hands from her body three times and was able to leave the bedroom and entered the lounge room. In the lounge room the husband ultimately asked her to “masturbate him” saying “take my semen - isn't my semen good enough for you” and became very angry and persistent with her.

13. The wife was referred to Ms V who described that her symptoms of trauma were consistent with the presentation of women who have experienced domestic violence namely anxiety, depression, hyperarousal, flashbacks and nightmares, lack of safety and cognitive impairment, in her report dated 26 July 2019. Of course, Ms V was only relying on the wife's version of events in the preparation of her report and thus it is a one sided report in that sense.

14. The wife told Ms V of the sexual abuse she suffered at the age of nine and that this past trauma was being triggered by her ex-husband's behaviour.

15. The wife told Ms V she had felt overwhelmed by the breakdown of her marriage, confused by her husband's behaviour and that she is fearful for herself. That her husband stalked her when she moved to her mother’s home and tracked down the children’s day-care and was visiting the children every day.

16. The wife said the husband constantly intruded into her space during and post the relationship and Ms V opined that this behaviour has created extreme fear and lack of safety, that this reaction has impacted on her mental and physical health and re-triggers the trauma she experienced when she was nine. 

17. That the husband’s behaviour of stalking her and sending harassing emails had a significant impact on her physical and mental health and that the wife tries to limit contact with the husband as much as is possible because of the impact such contact will have on her parenting of their children.

18. The wife told Ms V she was fearful at and of handovers and her husband, for example, refused to repeated requests not to come to the home for changeovers.

19. That she has been taken to hospital due to panic attacks and experiencing chest pain. That she is fearful of her ex-husband.

20. On a positive note, Ms V noted that the wife is on medication and is better able to manage her trauma symptoms and her health has improved since she and the husband separated.

21. The wife's counsel submitted that the husband, who is self- represented and will continue so to be, would re-traumatise the wife if he was permitted to cross-examine her at trial. That this re-traumatising would have a significant impact on her current functioning and therefore capacity to give evidence as well as have a significant impact on her parenting of the children, and that for all these reasons it is in the interests of justice I make the section 102NA(1) declaration.

22. I was referred to two decisions of this Court in relation to this issue.

23. The first is Owen & Owen (2020) 60 Fam LR 334 (“Owen & Owen”), a decision of Justice Gill, and the second is Upton & Everett and Anor [2020] FamCA 805 (“Upton & Everett”), a decision of Justice Rees. In both matters their Honours declined to exercise the discretion to make an order under section 102NA of the Act.

24. Section 102NA of the Act is as follows:

    (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.

    (2)       Both of the following requirements apply to the cross-examination:

    (a)the examining party must not cross-examine the witness party personally;

    (b)the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

25. The only basis upon which I could make an order pursuant to section 102NA is pursuant to 102NA(1)(c)(iv), which is the exercise of a discretion, unlike 102NA(1) (a), (b) and (c)(i), (ii) and (iii) which are mandatory.

26. In the decision of Upton & Everett, her Honour found that there was no allegation of family violence directed to the wife or the grandparents and the only allegation was the father saying to her in 2017 “The noose is getting tighter’ and in a forceful an angry tone ‘We all know what you've done. You're going to get what's coming. Watch out.” (at [9]) and that the wife felt intimidated and frightened and believed the father could physically hurt her. On the basis of that evidence her Honour dismissed the application made by the wife.

27. In Owen & Owen his Honour found that the allegation of family violence by the husband to the wife was sparse. At paragraph 40 of his judgment his Honour found that the allegation at its highest was contained in paragraph 14 of the wife’s trial affidavit and was as follows:

    There were other issues I don't wish to elaborate in that added to the deterioration of the situation involving psychological/emotional manipulations and displays of violence that served the purpose of maintaining control over me and consolidating [the husband's] position of power.

28. His Honour accepted at [41] that “due to the dynamics of family violence, there may be personal and practical difficulties in identifying individual acts of family violence within an abusive relationship” generally but the wife's description was deprived of any “significant capacity to support the proposition that the wife would be either at risk of re-traumatisation, or suffer from a compromise of her capacity to give evidence.”

29. There were allegations, however, in that matter that the father had committed acts of indecency upon one of the children and this would be a matter, his Honour said at [42], that constituted an example of family violence under the Act and could be a source of trauma for the wife but that would attract a lower weight as section 102NA is clearly focused upon violence occasioned by one party upon another.

30. The wife’s application was dismissed with his Honour noting that where there is an allegation of family violence between the parties and a discretionary order is not made pursuant to section 102NA, the Court will be required to put in place appropriate protections for cross-examination pursuant to section 102NB and this was the husband's application before me.

31. His Honour set out at [9] that what is required is not “proof of family violence” but rather an “allegation of family violence” and that this violence relates to violence between one party to the other rather than a family member. These are the allegations in this matter.

32. His Honour further found that the second precondition picks up the definition of family violence set out in section 4AB of the Act which is as follows:

    (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

    (2)Examples of behaviour that may constitute family violence include (but are not limited to):

    (a)an assault; or

    (b)a sexual assault or other sexually abusive behaviour; or

    (c)stalking; or

    (d)repeated derogatory taunts; or

    (e)intentionally damaging or destroying property; or

    (f)intentionally causing death or injury to an animal; or

    (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

    (j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

33. His Honour determined that the key in the exercise of this discretion is that the alleged behaviour coerces or controls or causes the family member to be fearful.

34. His Honour set out clearly the Explanatory Memorandum underpinning this legislation, at paragraph 25 as follows:  

    1.(The Bill) would ensure that appropriate protections for victims of family violence are in place during cross–examination in all family law proceedings.

    …

    3.It is intended that a party would obtain their own legal representation where possible, and that legal aid would be available where a party is unable to obtain private representation.

    4.… Personal cross-examination by an alleged perpetrator can expose victims of 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 power imbalances created by family violence.

    …

    6.It is important that any ban balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.[1]

    [1] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018.

35. The balance as I see it is permitting the parties to have a reasonable opportunity of presenting their case under conditions that do not disadvantage them and the protection of alleged victims of family violence.

36. This matter has not progressed to the stage where there are trial affidavits filed and all I have in relation to the wife's concerns and her allegations are those contained in her statements in the “Sexual Assault Questionnaire” she completed in November 2017, which led her to be referred to Ms V, and Ms V’s report dated 26 July 2019 based solely upon what the wife told her and her then presentation, the Parenting Questionnaire and her 2018 affidavit.

37. I must be satisfied on the evidence that permitting the husband to personally cross-examine the wife will, or will be potentially, re-traumatise her and that this could or will trigger the symptoms Ms V referred to at paragraph 4 of her report of 26 July 2019. If I am satisfied cross-examination would or may result in re-traumatising the wife, I would be concerned that the wife would then be impeded in her capacity to give cogent evidence if she was anxious, depressed, hyperaroused, suffering flashbacks and nightmares, felt she was not safe and was cognitively impaired.

38. The wife told Ms V that initially her cognitive impairment was such that she simply could not read and remember material or take it in and that this had significantly improved post-separation and after undergoing treatment.

39. If I make a declaration under section 102NA of the Act I am in no way accepting the allegations made by the wife that three indecent assaults occurred, or that the husband coerced and controlled her during and post the relationship. However there is evidence from the wife and her treating therapist that the husband's behaviour towards her has triggered the previous serious assaults she suffered at the age of nine and that contact with him, which she seeks to avoid, have triggered in her fears for her own safety.

40. In these circumstances it could not be in the interests of justice to run the risk of the wife becoming anxious, depressed, hyperaroused, suffer flashbacks and nightmares, feel unsafe and experience cognitive impairment if the husband personally cross-examined her at a very stressful time in both their lives. In so doing I would be acting contrary to the intention of the legislation which is to avoid:

    … Personal cross-examination by an alleged perpetrator [which] can expose victims of violence to re-traumatisation and can affect their ability to give clear evidence.[2]   

    [2] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 at [4].

41. This then can jeopardise the Court receiving the best possible evidence in order to make the best possible decision concerning the children's future parenting. 

42. On the facts of this matter, and with the support of the Independent Children's Lawyer, I will make the declaration pursuant to section 102NA of the Act.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.

Associate:

Dated:       21 April 2021