When can cross-examination be prohibited under section 102NA of the Family Law Act?
In March 2019, the Family Law Act 1975 (Cth) was amended to include section 102NA. Section 102NA was added with the aim of protecting parties who have been subjected to family violence by the other party to the Court proceedings, from having to be personally crossed examined by them at a Final Hearing. This is achieved by providing that if section 102NA applies to a family law matter, then cross-examination of the parties must be conducted by a legal practitioner acting on behalf of the party cross-examining the other party.
Section 102NA can apply even if there is not a Final Family Violence Protection Order applying to the parties or either party has been convicted of or charged with a criminal offence involving violence, or a threat of violence, to the other party.
This was seen in the decision of Naisby & Naisby (No 2) [2024] FedCFamC1F 699. In Naisby & Naisby, the Respondent to the substantive parenting proceedings asked the Court to make an Order in their discretion that the requirements of section 102NA of the Family Law Act 1975 (Cth) applied – the effect of this Order would be that the parties would not be able to personally cross examine each other at an upcoming Final Hearing.
There was no Final Family Violence Order applying to the parties, any injunction, nor had either party has been convicted of or charged with a criminal offence involving violence, or a threat of violence, to the other party. The Judge therefore was asked to make an order in his discretion that the section applies.
The Judge considered the circumstances in which the section is engaged and agreed that requirements of section 102NA(2) of the Family Law Act 1975 (Cth) were satisfied as: firstly, the parties were wanting to cross-examine each other at the upcoming Final Hearing and secondly, the Respondent alleged that there had been family violence between them and the Applicant. The Judge in his discretion allowed the application for the order that section 102NA applied and subsequently made an Order that the section applied.
The effect of this order was that neither party was able to personally cross-examine each other at the Final Hearing of the matter. It is important to note the Judge discussed that the application of the section was not “automatic” and that whether or not to make an order that the section applied required an identification of the factors relevant to the exercise of the discretion in each particular ease and weighing of those factors to arrive at a conclusion.
Conclusion
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