Williams & Hatheway
[2021] FedCFamC1F 132
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Williams & Hatheway [2021] FedCFamC1F 132
File number(s): SYC 7523 of 2013 Judgment of: REES J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application under section 102NA of the Family Law Act 1975 (Cth) – Application granted Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 10 Date of last submission: 14 October 2021 In Chambers: 18 October 2021 Place: Sydney Applicant: Self – Represented Respondent: Self – Represented Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7523 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HATHEWAY
Applicant
AND: MR WILLIAMS
Respondent
LEGAL AID NSW
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
18 OCTOBER 2021
UPON NOTING:
1.That the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them:
AND UPON FURTHER NOTING:
2.That the parties have each been advised by the court:
a. that pursuant to these orders, neither party may cross-examine the other party personally;
b. that pursuant to these orders, 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 Legal Aid NSW, which administers the said scheme.
THE COURT ORDERS:
3.The requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.
4.That leave is granted to the father to make an application pursuant to section 102NA within 14 days of the date of these orders.
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 Williams & Hatheway has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Parenting proceedings between Ms Hatheway (“the mother”) and Mr Williams (“the father”) are part heard before me, interim orders having been made in relation to the parenting arrangements for their son on 11 April 2019. It was intended that the orders would operate for a year and then the arrangements would be reviewed.
Both parties intend to represent themselves in the final hearing.
The mother has filed an Application in a Case seeking an order in the following terms:
That the requirements of s 102NA(2) of the Family Law Act 1975 shall apply to this matter, in that neither party shall cross-examine the other personally and such
cross-examination shall be conducted by a legal practitioner acting on behalf of the examining party.Section 102NA of the Family Law Act 1975 (Cth) (“the Act”) provides:
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.
In support of her application, the mother provided written submissions and relied on the documents there listed.
The mandatory provisions are satisfied. The mother alleges family violence between her and the father.
On 11 April 2019, an order was made, albeit by consent and without admissions, “That the father shall not enter the mother's property at G Street, Suburb E”. That order is an order pursuant to s 68B(1)(c)(i) of the Act because that is the residence of the child.
Both the Family Consultant and the mother’s treating psychologist have provided reports dealing with the mother’s psychological fragility and her assertions of family violence perpetrated by the father.
An order will be made as sought by the mother.
The consequence of the making of that order is that neither party will be permitted to cross-examine the other. Therefore, unless he has legal representation, the father will not be permitted to cross-examine the mother. Therefore, although the father has not made an application pursuant to section 102NA, I propose to grant him leave to do so.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Dated: 18 October 2021
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