Vespermann & Vespermann
[2022] FedCFamC1F 157
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vespermann & Vespermann [2022] FedCFamC1F 157
File number(s): SYC 6052 of 2018 Judgment of: CAMPTON J Date of judgment: 17 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where the father has recently become self-represented – Where none of the provisions in s 102NA(1)(c)(i),(ii), or (iii) apply – Where the discretion under s 102NA of the Act is engaged and ought to be exercised Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Owen & Owen [2020] FamCA 90 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 11 March 2022 Place: Sydney Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Burke & Mangan Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 6052 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESPERMANN
Applicant
AND: MS VESPERMANN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS THAT:
1.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the applicant must not cross-examine the respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the applicant.
2.Within seven days of the date of these orders, the applicant complete the "Scheme Application Form" and provide that form to Legal Aid NSW ([email protected]) for the allocation of a legal practitioner.
IT IS NOTED THAT
3.Pursuant to s 102NA(1), there is an allegation of family violence between the applicant and the respondent, and the Court has made an order that the requirements of subsection (2) are to apply to the cross-examination.
4.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)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)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
5.If the applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
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 the pseudonym Vespermann & Vespermann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
INTRODUCTION
These are parenting proceedings as to the children X born in 2013 and Y born in 2017, (collectively “the children”).
The parents married in 2006 in the United States of America (“USA”) and moved to Australia in 2008. They separated on 9 June 2018. The children remained in the primary care of the mother.
The mother’s primary proposal is that the children relocate with her to live in the USA. She proposes that the children spend indefinite supervised time with the father irrespective of whether they live in the USA or whether they remain in Australia.
The father’s primary proposal is that the mother be restrained from relocating with the children to the USA. He seeks orders if the mother is to remain in Australia, that during the school term the children live with the mother and spend alternate weekends with him, together with Wednesday evenings and Saturday during the day in the ‘off’ week. He seeks additional time during the school holidays. His position is that the parents should have equal shared parental responsibility for the children. He also seeks alternate orders in the event the mother is permitted to relocate with the children, and if the mother relocates to the USA but the children remain living in Australia.
The proceedings are listed for final trial before me over five days commencing on
16 May 2022. By way of trial management directions made on 4 November 2021, the affidavit evidence of the parents and of any lay witnesses for the trial are due to be filed and served on or before 25 March 2022.
The mother contends that the children would be exposed to an unacceptable risk of harm in the event they spent unsupervised time with the father arising from his paraphilic interests and his contended interest in prepubescent and teen pornography. She further contends that the father has difficulties with managing his anger and has perpetrated family violence on both she and X.
The father rejects the mother’s contentions as to risk. It is his case that he has never exposed the children to pornography and that he would not and has not ever experienced arousal or pleasure at a child being sexually harmed or exploited.
Dr B has prepared a report dated 8 November 2019 as the single court parenting. Ms C prepared a single court expert as to a psychological assessment of the father dated on 24 May 2021.
The expert reports record a number of contended circumstances of family violence including:
(a)In 2010, the father hitting the mother in the face with a belt and chipping her tooth. This is denied by the father.
(b)The father smashing holes in the kitchen door with a tool or hammer. He conceded to taking a soup ladle and smashing it against the door after the wife continued to “push and push” him until “I lost it”.
(c)The father picking the mother up and dropping her on a bed. This is denied by the father.
(d)The father pushing X to the ground and holding her arms down tightly. The father denies this conduct was characterised as family violence or that his behaviour was abusive. It was his case that he was simply disciplining the child.
(e)The father saying to the mother and X “do you want to see me lose it?”. This is denied by the father.
(f)The father banging his fists on the bed and the walls. This is denied by the father.
(g)The father telling X that he would cut her thumb off. The father admits he said this in response to X continuing to suck her thumb after he had repeatedly told her to stop.
The father was previously represented in the proceedings. No Notice of Ceasing to Act was filed by his previous solicitors. The father filed a Notice of Address for Service on 21 February 2022 recording that he commenced to appear on his own behalf on that date.
In the circumstances I relisted the matter on 11 March 2022 for consideration as to the application of s 102NA of the Family Law Act (1975) (Cth) (“the Act”) to the proceedings.
APPLICABLE LAW
s 102NA of 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.
(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.
Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
DISCUSSION
The father correctly identified that the mandatory provisions of s 102NA(1)(c)(i) to (iii) do not apply in this case. He opposed the discretionary application of the section identified in
s 102NA(1)(c)(iv).
The mother by way of her solicitor contended that the section applied in the circumstances of this matter and it would be appropriate that there be “a mutual order for the parties”, being that a s 102NA order should be made in favour of the mother as well. It was submitted that the mother required such an order:
…because she is the alleged victim of the family violence, and presently she has obtained my services, but that is not necessarily going to be the case for the entirety of this matter and she may face herself unrepresented for the trial and accordingly would need the benefit of that order to obtain the services of the legal aid scheme.
The Independent Children’s Lawyer submitted that an order ought be made restraining the father from cross-examining the mother, and that such an order would require the Court exercising its discretion under s 102NA(1)(c)(iv).
The Independent Children’s lawyer further submitted that the purpose of the section is not to fund a party’s legal representation if they are cannot afford to do so themselves. Her submission was that the mother is currently represented and that it would be inappropriate to make an order in her favour at this time. I accept that submission and reject the contention advanced by the mother.
A reading of the legislation does not require the allegation of family violence to be recent. It does not require the alleged allegations of family violence to be the primary foundations to conclude a finding as to risk. The object of the section is to ensure the protection of alleged victims of family violence from re-traumatisation due to being cross-examined by the alleged perpetrator. The section seeks the preservation of the integrity of the evidence in the proceedings by ensuring the alleged victims of family violence can give their evidence in circumstances that promotes their ability to give clear evidence. It seeks to ensure that a context of a power imbalance does not occur by way of direct cross-examination.
The mother makes serious family violence allegations. The Court must accept those allegations at face value at this time in the litigation. The allegations of family violence cannot be said to be “clearly spurious”.
As identified by Gill J in Owen & Owen [2020] FamCA 90:
9.It should be observed that what is required is not the proof of family violence, but rather the allegation of family violence. It should also be recognised that the allegation must relate to family violence between one party and the other, rather than against another family member. The provision does not distinguish between which party is the alleged perpetrator and which is the alleged victim.
In my view, in the circumstances of this case, the discretion under s 102NA of the Act is engaged and ought to be exercised.
Therefore, for all of the foregoing reasons I make orders as set out at the forefront of this judgment.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 17 March 2022
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