The Cross-Examination Conundrum: Navigating Procedural Fairness in Drost & Visser

Upholding Procedural Fairness in Family Law Appeals

Introduction

The Federal Circuit and Family Court of Australia recently tackled significant issues of procedural fairness and evidentiary assessment in the appeal case of *Drost & Visser [2024] FedCFamC1A 110*. The case revolved around property settlement orders following a marriage that ended amid allegations of domestic violence and procedural irregularities. This case not only underscores the importance of adherence to court rules and proper legal representation but also serves as a reminder of the weight that the court gives to credibility assessments in family law disputes.

Facts of the Case

Ms. Drost and Mr. Visser first met in 2013, married in 2016, and separated in September 2019, although they continued living together until July 2020. Following their separation, Mr. Visser sought financial relief in August 2022. A series of hearings were held, during which Ms. Drost represented herself but was subject to a restraining order under section 102NA of the Family Law Act 1975 (Cth), preventing her from personally cross-examining Mr. Visser.

The primary judge ruled in February 2024, concluding that the net value of the parties’ assets was just under $1.3 million, with Ms. Drost entitled to approximately 12% of that total after adjustments. Discontent with the orders, Ms. Drost filed an appeal on the grounds of procedural unfairness, factual mistakes, and alleged errors in the primary judge’s findings regarding family violence and contributions.

Ms. Drost felt she deserved more than 12% of the property pool for several reasons, which she raised during the appeal:

1. Duration and Nature of Relationship: Ms. Drost argued that the primary judge incorrectly assessed the length of their relationship and the contributions she made throughout it. She asserted that her relationship with Mr. Visser began earlier and lasted longer than the judge concluded, and she sought to demonstrate that her contributions extended beyond the years considered by the court.
2. Homemaking and Care Contributions: Ms. Drost argued that her contributions as a homemaker were greater than what the primary judge found. She asserted that she made substantial homemaking contributions, particularly during the longer relationship period she claimed, and that these were undervalued by the primary judge. She also claimed she provided care for Mr. Visser's mother, which the primary judge rejected based on the evidence presented.
3. Procedural Fairness and Opportunity to Present Her Case: Ms. Drost felt that procedural fairness had been denied to her because she was unable to cross-examine Mr. Visser at trial. She was restrained from doing so due to an order under section 102NA of the Family Law Act, which restricted personal cross-examination in cases involving family violence orders. This limitation, combined with her being self-represented, made it difficult for her to fully present her case, which she felt impacted the outcome unfavorably.
4. Weight Given to Contributions and Family Violence: Ms. Drost believed that the primary judge gave insufficient weight to her contributions, especially in light of the family violence issues she raised. She alleged that Mr. Visser perpetrated family violence against her, which made her contributions more onerous, and felt that the primary judge wrongly accepted Mr. Visser's version of events while dismissing her own. She believed that this incorrect assessment contributed to an undervaluation of her entitlement to the property pool.
5. Financial Needs and Future Requirements: During the hearing, Ms. Drost emphasized her financial needs, such as her medical expenses, her need for stable housing, and support for her daughter, who wished to stay and study in Australia. She argued that the property distribution was insufficient to meet her financial needs, as it left her unable to afford housing in Australia and meet her obligations. This economic disparity between her and Mr. Visser, in her view, warranted a higher entitlement from the property pool.

Overall, Ms. Drost felt that the combination of these factors—misassessment of her contributions, procedural limitations, financial needs, and the handling of family violence claims—meant she was entitled to a greater share of the $1.3 million property pool, rather than the 12% awarded to her.

Issues

1. Did the primary judge deny Ms. Drost procedural fairness by not allowing her to cross-examine Mr. Visser?

2. Were the primary judge's findings regarding the duration of the marriage and the existence of family violence supported by the evidence?

3. Was the refusal to grant an adjournment at the trial stage an error in discretion?

4. Did the primary judge err in assessing the contributions of Ms. Drost as a homemaker?

Applicable Legislation, Regulations, and Rules

1. Family Law Act 1975 (Cth) - particularly sections 4AB, 102NA, and 117, which outline provisions related to property settlements and procedural fairness in family law matters.

2. Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) - rules regarding procedural requirements in family law proceedings, notably rule 13.23 concerning the requirements for the Summary of Argument.

3. Crimes (Domestic and Personal Violence) Act 2007 (NSW) - relevant to the context of family violence allegations.

Analysis

• Procedural Fairness

The appeal primarily hinged on Ms. Drost's argument that she was denied procedural fairness due to the s 102NA restraining order. However, the court noted that she had been represented during the initial decision to bind her by this order and failed to demonstrate how her ability to contest Mr. Visser's evidence was materially impacted. The judge concluded that procedural fairness cannot be claimed based on a correctly made procedural order, even if the outcomes felt disadvantageous to Ms. Drost.

• Credibility Assessments

The primary judge's assessment of witness credibility was central to the appeal. The court upheld the lower court's preference for Mr. Visser's testimony over Ms. Drost's, citing her evasiveness and contradictions. The appeals court found that the factual findings regarding the length of the marriage and allegations of family violence were supported by sufficient evidence, thus affirming the primary judge’s conclusions.

• Adjournment Request

Ms. Drost's late request for an adjournment was deemed inappropriate, particularly as it came after the trial had concluded. The primary judge had the discretion to deny this request, especially given the history of earlier adjournments.

• Contributions Assessment

Ms. Drost's claims regarding her contributions as a homemaker were also rejected. The court noted inconsistencies in her testimony, especially concerning her periods of living abroad and her care for Mr. Visser’s mother. The findings regarding the minimal and intermittent nature of her contributions were deemed reasonable and supported by evidence.

Conclusion

The appeal in *Drost & Visser* was dismissed, affirming the lower court's decisions regarding procedural fairness, evidentiary findings, and the credibility of witnesses. The appellate court emphasized that a party's perception of disadvantage does not equate to procedural unfairness when court processes have been appropriately followed.

Take Home Lesson

The case illustrates the critical importance of procedural adherence and representation in family law disputes. It serves as a reminder for parties in similar situations to seek legal counsel and ensure they understand the procedural landscape, particularly concerning evidence and witness cross-examination. Furthermore, the case highlights that credibility assessments play a pivotal role in family law outcomes, reinforcing the need for parties to present consistent and reliable evidence to support their claims.