Velic & Velic
[2023] FedCFamC2F 824
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Velic & Velic [2023] FedCFamC2F 824
File number(s): ADC 3671 of 2019 Judgment of: JUDGE MCGINN Date of judgment: 15 June 2023 Catchwords: FAMILY LAW – interim application – section 10NA – self represented parties – discretion – section 102NA(1)(c) – no order made Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Owen & Owen [2020] FamCA 90
Neil & Zang [2021] FamCAFC 30
Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 14 June 2023 Place: Adelaide Applicant: No appearance Respondent: Self-represented Independent Children's Lawyer: No appearance ORDERS
ADC 3671 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VELIC
Applicant
AND: MR VELIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MCGINN
DATE OF ORDER:
14 JUNE 2023
IT IS ORDERED:
1.That upon the relisting of this matter at the request of the Independent Children's Lawyer for orders pursuant to section 102NA it is determined that section 102NA does not apply to these proceedings.
2.This matter remains listed for trial on 25 July 2023.
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 Velic & Velic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore)JUDGE McGINN
These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This matter was listed before the Court on 13 April 2023 in respect of a request on behalf of the Independent Children's Lawyer as to whether section 102NA of the Family Law Act 1975 (Cth) (the ‘Act’) may be applicable to the circumstance of this case.
For the reasons that follow, I have determined that section 102NA does not apply to these proceedings.
It ultimately turned out that the Independent Children's Lawyer had the matter relisted on account of there being a possibility that section 102NA applied given that Lawyer’s view that the general and vague assertions in relation to family violence might otherwise justify the making of an order pursuant to section 102NA(1)(c)(iv) in circumstances where both of the parties are without legal representation.
Whilst each of the parties and the Independent Children's Lawyer agree that there are allegations of family violence between the parties in these proceedings and that there is to be cross-examination by each party at the trial hearing of this matter, no party nor the Independent Children's Lawyer could satisfy the Court, subject to one possible exception which I will turn to in a moment, that any of the criteria identified in subsections 102NA(1)(c)(i) or (ii) or (iii) were present and could not take the Court to any material which established that to be the case.
Bearing in mind the difficulties that a party may have in identifying acts of family violence,[1] the Court is not otherwise satisfied, having heard from the Independent Children's Lawyer and each of the parties, that it should be satisfied, pursuant to subsection 102NA(1)(c)(iv) that the requirements of subsection 102NA(2) should apply to the cross-examination of either party of the other party.
[1] Owen & Owen [2020] FamCA 90.
In making this determination, where the parties are self-represented, the Court bears in mind what was said by the Full Court of the Family Court of Australia in Neil & Zang [2021] FamCAFC 30 at [44]:
While the father may have considered himself generally disadvantaged by his lack of legal representation at the trial, that detriment is commonly experienced by self-represented litigants. It was not a factor which materially influences exercise of discretion under section 102NA of the Act, which provision is designed for the specific purpose of alleviating the anxiety experienced by victims of family violence having to directly confront their abuser in court and ought not to be called to aid by a litigant simply to obtain legal aid, not otherwise available, to ensure legal.
Section 102NA is headed, “Mandatory protections for parties in certain cases.”
Subsection (2) of that section precludes cross-examination by a party of a witness party and stipulates that the cross-examination must be conducted by a legal practitioner acting on behalf of the party.
The criteria set out in subsection (1) requires, firstly, an intention to cross-examine a witness party and, secondly, an allegation of family violence between the parties and thirdly, satisfaction of one of four criteria of subsection (1)(c).
The first three criteria set out in subsection (1)(c) can be objectively established in the sense that evidence can be made available to the Court if either party, having been convicted or charged with an offence involving violence or threat of violence to the other party; a family violence order (not being an interim order) applying to both parties; or an injunction for personal protection of either party directed against the other party, made under section 68B or 114 of the Act, produces to the Court a relevant record or its equivalent by affidavit or identifying the existence of the same in the Court record.
The fourth criteria is set out in subsection (1)(c) and requires the Court to be satisfied that it is appropriate for an order to be made under subsection (2).
In considering whether to exercise the discretion made available under subsection (1)(c)(iv), the Court recognises that it has and would have at trial the ability to control the proceedings, including the questioning of witness under various provisions of the Act in the Evidence Act1995 (Cth).[2] This is a case where those powers could well be exercised if need be.
[2] Family Law Act 1975 (Cth) s 102NB, s 102C1, s 69ZX(2); Evidence Act 1995 (Cth), s 26, s 41.
Considering all of these matters, the Court is not satisfied that it should make an order pursuant to section 102NA(1)(c)(iv) in all the circumstances of this case.
Having heard submissions of the parties and the Independent Children's Lawyer on 13 April 2023, the Court provided the mother an opportunity to file an affidavit relating to a claim of the father having been charged with stalking her. The mother told the Court she could attend upon the police to obtain the necessary document or record and was directed to use the Court website or seek assistance from Legal Aid as to the filing of an affidavit annexing the material she said she could obtain. The provision of that material would allow the Court to reconsider whether section 102NA(1)(c) is otherwise applicable.
The Court ordered such an affidavit be filed within five days of 13 April 2023 and directed that the Court would then deliver its reasons. No such affidavit has been filed and so no reconsideration is required.
The matter otherwise remains listed for trial on 25 July 2023 and, as the parties and the Independent Children’s Lawyer were reminded on the last occasion, orders for filing of affidavit material remain to be complied with despite the relisting of the matter with respect of the section 102NA at the request of the Independent Children's Lawyer and the reservation of judgment on that topic.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McGinn. Associate:
Dated: 4 July 2023
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