Father Opposes Final Parenting Orders

Lindfield & Romano [2022] FedCFamC1A 81 (2 June 2022)

The father filed an appeal against final parenting orders asserting that the primary judge erred in mistakenly imposing the mandatory conditions to prevent the appellant from personally cross-examining the respondent during the trial when no order had been made.

The Court, in determining whether the appeal should be granted, considered that the appellant bears the onus of establishing that the error of law was material to the outcome.

Facts:

The parties married in 2000 and separated in or around 2009, although they remained living under the one roof for a period of time subsequent to separation.  There are three children of the relationship, now aged 20, 18 and 12.  

Proceedings under Pt VII of the Act commenced by the respondent in September 2010 resulted in final orders permitting the children increasing time with the appellant, although that time ceased in February 2016.  In June 2016, the appellant recommenced proceedings under Pt VII of the Act. A significant issue during the second proceeding was the respondent’s contention that the appellant had engaged in coercive and controlling behaviour, including verbal and some physical abuse, which continued subsequent to separation. 

The appellant denied the allegations of abusive conduct.  In January 2020, the family attended upon a Family Consultant for preparation of a family report.  On 27 February 2020, the primary judge conducted a procedural hearing during which he released the family report to the parties.  As the appellant was self-represented, the primary judge raised with him the provisions of s 102NA of the Act and alerted him to his asserted inability to personally cross-examine the respondent at the final hearing. 

Orders were made:

1. that each party may cross-examine the other party personally;
2. that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the party;
3. as to the availability of 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
4. that a copy of these orders will be provided by the court to Legal Aid, which administers the said scheme.

On 7 September 2020, the primary judge conducted a compliance hearing, where orders were made for the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to apply in relation to representation for the Applicant father against whom allegations of violence are made by the Respondent mother; for the legal representative allocated to the Applicant father in accordance with the Legal Aid scheme to provide representation for the purposes of s 102NA of the Act to file a Notice of Ceasing to Act on 27 August 2020; and the Applicant father has been advised he must urgently take necessary steps to obtain representation for the trial which is listed to proceed on 21 September 2020.

The trial proceeded before the primary judge for four days, during which the appellant was not permitted to personally cross-examine the respondent, and the parenting orders were made on 25 March 2021. 

The orders pertained to the two younger children, as at the date of the trial the eldest child was aged 19.  Ultimately, the primary judge concluded that there should not be any time between the appellant and the two children.

Issue:

Whether or not the primary judge erred in denying the father the opportunity to cross examining the mother. 

Applicable law:

Analysis:

The March 2012 order could only have been made pursuant to the power conferred by s 68B of the Act.

The injunction was made for the welfare of the children, and not for the protection of the children, nor for the protection of either of the parties. 

The order sought to be relied upon could not possibly be construed as including any degree of personal protection for a spouse who would not necessarily be present.  It cannot automatically engage the prohibition on personal cross-examination, as contemplated by s.102NA(1)(c)(iii). There was no order ever made or recorded by the primary judge pursuant to s.102NA(1)(c)(iv) to engage the provisions of s.102NA(2) to prevent personal cross-examination of the respondent by the appellant.

Although the appellant has demonstrated appealable error by the primary judge, he did not discharge his onus of showing that the error was material to the outcome. 

The principal issue for the primary judge was the risk the appellant posed to the children, which included, but was not confined, to the respondent’s allegations of family violence.  Other relevant factors included the appellant’s lack of capacity to provide for the youngest child’s emotional and intellectual needs, his lack of capacity to care for the child on a day to day basis, his lack of insight and the effect of his behaviour on the children, his presentation and demeanour, and the risk of psychological harm to the youngest child through fear of his father.  All of these considerations were addressed by the primary judge in reaching his determination and the exercise of discretion by the primary judge would inevitably have produced the same outcome.

Conclusion:

The primary judge made an error of law in mistakenly imposing a prohibition on the appellant personally cross-examining the respondent, when neither the automatic provisions of s.102NA(1) were engaged, and nor had the primary judge made a discretionary order pursuant to s.102NA(1)(c)(iv) of the Act.  The parenting appeal will be dismissed.  

#FamilyViolence #Appeals