Waugh & Rozon
[2024] FedCFamC1F 268
•3 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Waugh & Rozon [2024] FedCFamC1F 268
File number(s): SYC 3879 of 2022 Judgment of: CURRAN J Date of judgment: 3 April 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Oral application by mother seeking that the father be removed from the court room while she gives evidence – Allegations of family violence – Capacity for the father to observe in another court room by audio-visual-link – Application granted – Oral application by father seeking the mother to remove her niqab during cross examination – Whether a niqab impacts the assessment of credibility – Where mother’s religious beliefs are on basis that she does not wish to expose her face to men – Where mother did not oppose the application if father was in a separate courtroom and a screen was put in place – Application granted – Screen put in place to block witness from the bar table Cases cited: ASIC v Rich [2004] NSWSC 467
Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898
KN v R [2017] NSWCCA 249
Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353
R v Chaarani [2018] VSC 387
R v Daniel Haile [2024] NSWSC 122
Division: Division 1 First Instance Number of paragraphs: 30 Date of last submission/s: 3 April 2024 Date of hearing: 2 April 2024 Place: Sydney Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Gannon Family Law Counsel for the Respondent: Ms Winfield Solicitor for the Respondent: Choice Law Group Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 3879 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WAUGH
Applicant
AND: MR ROZON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS THAT:
1.The mother’s oral application is granted.
2.The father’s oral application is granted.
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 Waugh & Rozon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
APPLICATION FOR THE FATHER TO PARTICIPATE REMOTELY
An oral application was made by counsel for the mother that the father be removed from the courtroom but participate by Microsoft Teams while the mother gives evidence in light of the allegations of physical and sexual family violence, and the mother’s vulnerabilities including post-traumatic stress disorder (“PTSD”). There is evidence in the Single Expert Report dated 29 March 2024 that the mother is suffering from PTSD, and while it is not yet tested, I give it some weight.
It was submitted by counsel for the father that ASIC v Rich [2004] NSWSC 467 and KN v R [2017] NSWCCA 249 were the relevant authorities. These authorities relate to the desirability of witnesses giving evidence by AVL, which is a discretionary decision. It was submitted on behalf of the father that there is prejudice arising from the practical difficulty of taking instructions in these circumstances.
As submitted by counsel for the Independent Children’s Lawyer (“ICL”), each party is entitled to safety in accordance with the family violence guidelines.
The Family Violence Best Practice Principles state that:
Where a party is an alleged victim of family violence, even being in the same room as the allege perpetrator may impact on their capacity to participate in proceedings. Steps may be taken to allow a party to participate in the hearing by video or audio link (either from another room in the Court building or from an external location), to allow them to have a support person near them whilst giving evidence, or to set up a physical screen between the parties.
It is clear that the course proposed by counsel for the mother is not an uncommon measure taken by the Court in cases where allegations of family violence arise. In fact, remote witness rooms are used in many jurisdictions to protect vulnerable witnesses.
Counsel for the father did not make any submissions that persuade me as to the prejudice which would impact the father if he were required to listen in an electronic form from a separate room to the evidence and cross examination of the mother. Fortunately, there is a separate courtroom available next door today and one of my Associates can sit in that courtroom with the father.
Any prejudice in relation to the father being properly able to provide instructions will be cured by there being breaks afforded to counsel at any time she requests, for her instructor to move freely between the courtrooms to take instructions, for her instructor to communicate with the father via text if necessary during the evidence being taken, and for the father and his counsel to have leave to leave the courtrooms and obtain instructions as required.
It was submitted that the mother has not established the family violence which would ground the application, however, the test is not a matter of factual findings. It is enough, in my view, that there are allegations of family violence, and they are serious allegations. It is important that witnesses feel safe in giving their evidence, but equally that the evidence is able to be fulsomely tested.
I grant the application as sought by the mother.
APPLICATION FOR REMOVAL OF VEIL
On the afternoon of the first day of the final hearing, counsel for the father made an oral application that the mother should be required to remove her veil which covers her nose and mouth, known as a Niqab.
It was submitted that the father would be prejudiced if he were not to see the mother’s face, as he would be required to “assess her credibility” for the purpose of giving instructions.
Counsel for the ICL supported the mother’s application not to be required to remove the veil, but further stated he would support any capacity for the parties to fairly but safely give their evidence.
I raised the possibility of all males sitting in the adjacent court room; however, the mother’s counsel’s instructor is also male and has had the running of the case. This option created difficulties.
The efficient running of the court must be balanced with safety. It also must be balanced with the mother’s right to religious freedom and must be balanced with issues of delay and cost in determination of this matter.
Discussion
I have had the benefit of the mother’s and the father’s written submissions.
I agree that the mother has a right to religious freedom, and a right to participate in religious life. These rights are recognised in Australian law. It can hardly be said it is the Court’s intention to deprive the mother of such human rights and it is certainly not the Court’s intention to do that.
I accept that the demeanour of a witness and the viewing of the face is not the only way in which credibility is assessed.
Counsel for the father relied upon the authority of Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353. That matter went to the Court of Appeal (Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898 (“Elzahed”)), where the decision of the primary judge was upheld.
Judge Balla at first instance stated:
[4] It is my role to ensure that there is a trial which is fair to all parties. I must balance on the one hand the need to respect the first plaintiff’s religious beliefs. In this case, those beliefs mean that she may choose not to give evidence which could impact on the successful prosecution of her case.
[5] On the other hand, I must take into account whether I would be impeded in my ability to fully assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.
The Court of Appeal found that there was no error in Judge Balla’s decision to refuse to allow the witness to give evidence whilst wearing the Niqab, stating:
[64]There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application. In drawing this conclusion we refer, without repeating, to our earlier findings about the appropriate steps taken by the primary judge in reaching her conclusion.
The facts are similar to the present case. The evidence that the mother will give is highly contentious and probative, as it relates to family violence, and that violence is denied by the father in his evidence. The mother is not a mere witness, she is a party to these proceedings. Her evidence is, to use the expression of Judge Balla which has been repeated in the Supreme Court of New South Wales decision of R v Daniel Haile [2024] NSWSC 122, “crucial” to the resolution of the case.
Counsel for the father also referred to the Victorian Supreme Court decision of R v Chaarani [2018] VSC 387. That case is distinguished from the present case, as the judge ultimately determined that the family of an accused should not sit in the public gallery wearing a niqab as it gives rise to a security risk where an “incident” could occur and identification could be an issue, particularly in proceedings where there were multiple co-accused of the Muslim faith, and to allow one person to where a niqab could cause more people in the gallery to do so. These considerations are not relevant in this matter.
The authority cited by counsel for the father (Elzahed) is a torts case, wherein the first plaintiff sought damages against the Australian Federal Police for an alleged assault that occurred during the execution of a search warrant. The Supreme Court decision which I have cited above was related to criminal proceedings concerning a murder charge.
It was submitted that there is prejudice to the father if the mother gives her evidence whilst wearing her niqab as he will be unable to assess her credibility. The credibility of the mother is a matter for me. There were not any more persuasive submissions made by counsel for the father as to why the father, a person who knows that the mother wears a niqab in the observation of her faith, sought that she be unveiled. The application was made orally yesterday afternoon at 2.15pm and there was no notice given to the Court of such an application, nor the possible options to address the competing interests of the parties, had such notice been given earlier.
Counsel for the mother submitted that the safety concerns raised in her application to have the father not in the courtroom whilst she gives evidence are amplified in circumstances where the father has put on an application for the mother to be “quite literally exposed.” I accept that submission. Counsel also persuasively made the parallels with parties giving evidence wearing masks during the COVID-19 pandemic which I have considered, but I do not consider are a parallel.
However, in balancing the need to respect the mother’s religious and cultural beliefs and the prejudice to the father if the mother is allowed to give evidence with her face covered, I accept that my capacity to assess the mother’s credibility may be hindered if I am unable to see her face and observe her demeanour as she is cross examined. To balance the safety of the mother and respect her religious and cultural beliefs, and my capacity to assess the evidence, I grant the application. I order that while the mother is being cross examined she will remove her veil; that only necessary males, being instructor and counsel for ICL, be present in the court room; and that the mother will give her evidence where I can see her with the benefit of a screen, in this case being a whiteboard that has been brought into the courtroom, which will be used to screen the mother.
I have taken into account all of the written submissions from all parties and the oral submissions that were made, although have not referred to all of them in these brief reasons.
I am persuaded that there must be a balance between me being able to fully assess the credibility and evidence of the mother and ensuring her safety and respecting her right to religious freedom. I note, however, that the mother did not oppose the removal of her veil if there was a screen and if the father was in a separate room. There is evidence the mother has PTSD arising from her alleged exposure to family violence. I note that this is denied. The mother through her counsel has expressed, and I accept, that her cultural and religious beliefs to remain veiled are on the basis that she does not wish to expose her face to men and these beliefs should be respected.
On that basis, I grant the application.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 24 April 2024