When the Automatic Ban Doesn't Apply: How the Court Used Its Discretion to Stop Parents Cross-Examining Each Other in Person

In Cannon & Cannon [2026] FedCFamC1F 615, the Court dealt with a self-represented mother's application, in long-running parenting proceedings, for an order that the protections in s 102NA(2) of the Family Law Act 1975 (Cth) apply at the final hearing, so that neither parent personally cross-examines the other and any cross-examination is done by a lawyer ([1]–[3]). The result: deciding the application on the papers, Jarrett J ordered under s 102NA(1)(c)(iv) that the requirements of s 102NA(2) apply to the cross-examination of each party (Order 1; [6], [26]). The important point is that, even where none of the circumstances that trigger the ban automatically is present, the Court has a discretion to apply it. That discretion is "not available merely for the asking" ([16]), but the Court does not have to decide whether the family violence allegations are true. It looks at the existence, nature and seriousness of the allegations and any objective circumstances supporting or undermining them ([18]–[19]). Here, the respondent's concessions, and the fact that neither he nor the Independent Children's Lawyer opposed the order, were important ([22]–[23], [25]). All paragraph references below are to the judgment.

Why it matters: Parties sometimes assume that if criminal charges were dropped and no family violence order is currently in force, they will have to face personal cross-examination by the other party. The respondent made those very points here ([10]). This judgment shows that the Court can still order that cross-examination be done only by lawyers, where that protects the quality of the evidence and the integrity of the trial ([24], [26]).

🧩 Facts and Issues

The parties and the proceedings

• These are parenting proceedings with origins in litigation that started in 2020. The current case is the applicant mother's application, filed in May 2025, to vary parenting orders made by consent on 6 September 2022 ([2]). The parties "have been engaged in litigation and conflict since at least 2019" ([2]).
• An Independent Children's Lawyer (ICL) remains appointed for the children ([2]). The applicant is self-represented. The respondent father is legally represented (cover page).
• By an Application in a Proceeding filed on 17 August 2026, the applicant sought an order that the s 102NA(2) protections apply at the forthcoming final hearing ([1]).
• The application was decided on the papers: the applicant's affidavit of 17 August 2026 and written submissions from the applicant, the respondent and the ICL ([6]).
• The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).

The applicant's case

The applicant's case rested on allegations of family violence ([3], [7]–[9]). The Court made no findings about whether they are true ([18], [21]). In summary:

• She relied on incidents in late 2019 which led to the respondent being charged with two counts of common assault. The charges were later discontinued. She submitted that this did not reflect a rejection of the underlying allegations ([7]).
• Police issued a Police Protection Notice naming her as the aggrieved person ([7]).
• She also relied on her police statement, records said to have been made by childcare educators, and Queensland Health material concerning one of the children. She said this showed a broader pattern of harm over a number of years ([8]).
• She said that being personally cross-examined by the respondent would recreate the power imbalance she says existed in the relationship, and would likely impair her ability to give clear and reliable evidence ([3], [9]).

The respondent's position

• The respondent did not accept many of the allegations. He said the criminal charges were discontinued and that no family violence orders were currently in force. He submitted that the circumstances in ss 102NA(1)(c)(i) to (iii) were not satisfied ([4], [10]).
• But he made "a number of important concessions" ([11]). He accepted that allegations of family violence had been made between the parties and that the preconditions in ss 102NA(1)(a) and (b) were met. He acknowledged that the applicant's allegations were "extensive and wide reaching" and had never been tested at a final hearing, because the earlier proceedings ended with consent orders. He also accepted that, if the applicant's allegations were true, her capacity to cross-examine him effectively might be compromised ([11]).
• He did not oppose the order ([4], [22]).

The ICL's position

• The ICL pointed to the long history of conflict and litigation, including mutual domestic violence orders over a considerable period and allegations of family violence made by each parent against the other ([12]–[13]).
• The ICL noted that neither parent had legal aid funding and that no protection order was currently in force ([12]).
• The ICL also noted that the applicant's affidavit did not itself set out the alleged incidents in detail. Much of the relevant material was elsewhere in the court record, including earlier affidavits and information-sharing material from Queensland Police ([12]).
• The ICL submitted that cross-examination by lawyers would likely help the Court by ensuring that the allegations and other parenting issues were properly articulated and tested, and did not oppose the order ([5], [13], [23]).

Issue

Because the parties agreed that the preconditions were met and none of the automatic triggers applied, the only issue was whether the Court should exercise its discretion under s 102NA(1)(c)(iv) ([15]).

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth), s 102NA, as described in the judgment ([1], [14]):

• The two preconditions: one party must intend to cross-examine the other, and there must be an allegation of family violence between them (ss 102NA(1)(a) and (b)) ([14]).
• The automatic ban: where the preconditions exist and one of the circumstances in ss 102NA(1)(c)(i)–(iii) is present, the prohibition on personal cross-examination "arises by force of the statute itself" ([14]).
• The discretion: where none of those circumstances exists, the Court may order under s 102NA(1)(c)(iv) that the requirements of s 102NA(2) apply ([14]).
• The effect of s 102NA(2): in substance, neither party may personally cross-examine the other, and any cross-examination must be conducted by a legal practitioner ([1]).

Family Law Act 1975 (Cth), Part XIVB and s 114Q(2): the publication restrictions and the approval of the pseudonym (cover notes).

📌 Precedents Relied On

• Owen & Owen [2020] FamCA 90: explains the structure of s 102NA (two preconditions, then either the automatic ban or the discretion) ([14]), the legislative purpose ([17]), and that the purpose extends to protecting the integrity of the fact-finding process ([24]).
• Lazar & Haines [2022] FedCFamC1F 35: discusses the same structure ([14]); the discretion is broad but must be exercised judicially, having regard to the purpose of the legislation and the facts of the case ([16]); and the broader protective purpose ([24]).
• Hurley & Melton (No 2) [2020] FamCA 917: the legislative purpose, including the risk of re-traumatisation, the integrity of fact-finding, and the effect of an existing power imbalance ([17], [24]).
• Naisby & Naisby (No 2) [2024] FedCFamC1F 699: cited with Lazar & Haines for the proposition that the discretion must be exercised judicially ([16]).

🧠 Analysis

Issue

Where both parties accept that allegations of family violence have been made, but none of the automatic triggers applies, when should the Court order that neither party may personally cross-examine the other ([15])?

Rule

• The discretion is broad, but must be exercised judicially, having regard to the purpose of the legislation and the facts of the case ([16]).
• It is not available "merely for the asking". Otherwise the distinction Parliament drew between the automatic ban and the discretion "would have little practical significance" ([16]).
• The purpose is to address the risk of re-traumatisation, protect the integrity of fact-finding, promote clear and reliable evidence, and avoid an alleged victim having to cross-examine an alleged perpetrator where there is an existing power imbalance. It also recognises that an alleged victim's capacity to challenge the other party's evidence may itself be compromised by family violence ([17]).
• The Court is not trying the allegations. Their existence, nature and seriousness, and any objective circumstances supporting or undermining them, are relevant because they bear on whether there is "a realistic prospect" that personal cross-examination may affect the quality of the evidence or the proper conduct of the hearing ([18]).

The judgment lists considerations that may be relevant ([19]):

• the nature and extent of the alleged family violence;
• whether there are family violence orders, criminal proceedings or other objective indicia of family violence;
• the extent to which allegations have been admitted, denied or conceded;
• the likely effect of personal cross-examination on the parties; and
• whether an order would help the Court determine the case efficiently and fairly.

No one consideration is decisive, and the weight given to each depends on the case ([19]).

Application

The preconditions were not in dispute

The applicant intended to cross-examine the respondent, and allegations of family violence had been made between the parties. The respondent expressly accepted that ss 102NA(1)(a) and (b) were satisfied ([15], [21]).

The truth of the allegations did not have to be decided

The respondent disputed many of the allegations, and the Court was "not presently required to determine their truth". What mattered was that "their existence is not in issue" ([21]).

The respondent's concessions were important

The judge described the respondent's acknowledgements as important: the allegations were extensive, they had never been tested at a final hearing, and if true, the applicant's ability to cross-examine him effectively may be compromised. He did not oppose the order ([22]).

The ICL said lawyer-led cross-examination would help the Court

The ICL did not oppose the order and submitted that cross-examination by lawyers would help ensure the allegations and other issues in dispute were explored "in an appropriate and focussed manner" ([23]).

The purpose is the integrity of the trial, not only protecting one party

Relying on Owen & Owen, Hurley & Melton (No 2) and Lazar & Haines, the judge said s 102NA is not limited to protecting a party from the experience of being cross-examined by an alleged perpetrator. It is directed more broadly to protecting the fact-finding process, by reducing the risk that family violence or a power imbalance impairs a party's ability to give evidence or to test the other party's evidence ([24]).

"Neither fanciful nor trivial"

The judge was satisfied the considerations favoured the order ([25]):

• the allegations were "neither fanciful nor trivial";
• there was "objective material demonstrating a history of family violence allegations, criminal charges and protection order proceedings involving these parties";
• the applicant said personal cross-examination would affect her ability to give evidence; and
• the respondent accepted that possibility.

The order protects the trial process both ways

The judge concluded that "the integrity of the trial process will best be protected by ensuring that neither party is required personally to cross-examine the other", and ordered that s 102NA(2) applies to the cross-examination of each party ([26]; Order 1).

Be careful not to overstate this. The order is not a finding that family violence occurred. The judgment expressly says the truth of the allegations was not before the Court ([18], [21]).

Conclusion

Even though none of the automatic triggers applied, the Court exercised its discretion under s 102NA(1)(c)(iv). The allegations were serious, long-running and supported by objective material such as past charges and protection order proceedings. The respondent conceded that, if true, they might compromise the applicant's ability to cross-examine him. Neither he nor the ICL opposed the order, and lawyer-led cross-examination would protect the integrity of the fact-finding process ([20]–[26]).

The judgment does not decide the parenting issues and makes no findings on the family violence allegations. Those are matters for the final hearing.

🧠 Take-Home Lesson

• The automatic ban is not the only route. If none of the automatic triggers applies, you can still ask the Court to order that s 102NA(2) applies, under s 102NA(1)(c)(iv) ([14]).
• It is not granted "merely for the asking". Give the Court material on the considerations in [19], such as the nature of the allegations, any orders, charges or police records, what has been conceded, and how personal cross-examination would affect you ([16], [19]).
• You do not have to prove the allegations at this stage. The Court looks at their existence, nature and seriousness and any objective circumstances, not whether they are true ([18]).
• Discontinued charges and no current orders do not end the inquiry. The respondent relied on those points, but the history of charges and protection order proceedings still counted as objective material ([10], [25]).
• Concessions matter. The judge described the respondent's acknowledgements as important, and relied on them in making the order ([22], [25]).
• Make your supporting affidavit do the work. The ICL noted that the applicant's affidavit did not itself set out the alleged incidents in detail, and that much of the material sat elsewhere in the court record ([12]). The application still succeeded on the evidence as a whole ([20]), but setting out the key material in the affidavit itself is the safer course.
• The order can protect both parties. Here, neither party may personally cross-examine the other ([26]; Order 1).
• Plan for who will do the cross-examining. The ICL noted that neither parent had legal aid funding ([12]). The judgment does not deal with how lawyers for cross-examination will be arranged, so get advice about this early.
• Support workers and McKenzie friends: an order like this is not a finding that family violence occurred ([18]). It is about making sure the evidence at trial can be given and tested fairly.

"The question is not whether the allegations are proved. It is whether personal cross-examination could compromise the evidence."

"The automatic ban is the floor, not the ceiling."