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The problems with section 102NA of the Family Law Act 1975 — Sterling Law QLD

“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.”

― Friedrich A. Hayek, The Constitution of Liberty

Section 102NA of the Family Law Act 1975 provides that:

(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.

(3)  The court may make an order under subparagraph (1)(c)(iv):

(a)  on its own initiative; or

(b)  on the application of:

(i)  the witness party; or

(ii)  the examining party; or

(iii)  if an independent children’s lawyer has been appointed for a child in relation to the proceedings–that lawyer.

This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.

  1. It gives perpetrators an unearned advantage

Section 102NA of the Family Law Act 1975 means that perpetrators of family violence who may not otherwise qualify for legal assistance now do.

This means that instead of having to pay for legal representation, they can now get it for free and at taxpayers’ expense, no matter what their financial circumstances are.

And if the perpetrator was previously not legally represented, they now have the benefit of legal representation that they otherwise may not have obtained, and therefore their case will be presented far better than if they continued to self-represent.

Section 102NA of the Family Law Act 1975 was not intended to benefit perpetrators of family violence, but that is precisely what it does.

  • It also gives false accusers an unearned advantage

False allegations of family violence are a fact of life in family law.

Whenever an allegation of family violence is made, unless it is backed up by hard evidence or another court has made findings or imposed convictions, the accused party will usually deny the allegation. The allegations must then be determined at trial, where findings of fact can be made. Sometimes allegations are proven at trial, and sometimes they are found to be false.

Section 102NA of the Family Law Act 1975 means that the mere making of allegations of family violence may and does result in people who may not otherwise qualify for legal assistance now being entitled to it.  

  • It results in a waste of Court resources and undue delay

One of the unintended consequences of section 102NA is the deleterious impacts on case management and the allocation of court resources.

No matter how unreasonable parties are when s102NA applies, the trial ordinarily cannot proceed until and unless they are legally represented.

One can imagine a not uncommon scenario where a party forces their lawyers to withdraw at the commencement or mid-trial, and the trial therefore has to be aborted or adjourned because they need lawyers to cross-examine the other party.  

Such undue prolongation of cases is contrary to modern principles of case management, which places great emphasis on the public interest: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon”) at [93].

In Aon, French CJ observed at [24] that:

“Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation”

Another perverse consequence is that a party could potentially be immune from a trial which may make adverse factual findings against them or from being a declared a vexatious litigant simply because they have conducted themselves unreasonably and can’t be represented. If the approach of some judges is anything to go by, achieving finality in family law litigation might be an impossible task in some cases.

  • It encourages and rewards unreasonable and conduct

A party that engages private legal representation and is rude to their lawyers or makes baseless allegations of misconduct against their lawyers at least suffers the detriment of having to pay money to have new lawyers get up to speed in their legal matters.

Ordinarily, a legally aided party may have their grant of aid reviewed and they may not have another lawyer appointed.

None of those drawbacks can apply with section 102NA, because the party must be given free legal representation no matter what. It’s a consequence-free little bubble. Some parties know how to game the system: they make unreasonable demands or impose unrealistic expectations on their lawyers knowing full well that they can expect to have another lawyer appointed in their place at public expense, who they hope will yield more to their unreasonable demands and expectations.

Furthermore, the lack of negative consequences for failing to comply with trial directions, and secure legal representation provides unwarranted protections to section 102NA litigants from their own glaring failures.

Humans respond to incentives. Section 102NA of the Family Law Act rewards bad behaviour and provides insulation from negative consequences. Inevitably, that will lead to more poor behaviours.

  • Taxpayers pay for all this

There is a quadruple whammy for taxpayers from Section 102NA of the Family Law Act 1975.

As previously outlined, there is a consequential and significant waste and misallocation of court resources. Taxpayers pay for those scarce court resources and their waste through unwarranted adjournments and undue delay.

Section 102NA of the Family Law Act 1975 results in taxpayers paying for the legal representation of parties to a much greater extent than previously occurred. That is the second whammy.

The third whammy arises from a combination of these two factors. No matter how much undue cost and delay is incurred as a result of section 102NA of the Family Law Act 1975, the lawyers still get paid by the taxpayer for those delays. Whilst lawyers should be paid for the work that they do, even when they do not assist with the public administration of justice through no fault of their own, the consequence is that the taxpayer has to pay even more.

The fourth whammy is that because section 102NA rewards bad behaviour from parties, we can expect more of it to occur.

Whilst the unmeritorious and unreasonable are often the winners, the taxpayer is invariably the loser.

  • It undermines public confidence the administration of justice

In Aon, French CJ observed at [24] that:

“Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests.”

Section 102NA of the Family Law Act 1975 results in undeserved advantages and unwarranted delays at public expense, there is a tremendous risk of diminishing confidence in the legal profession and the administration of justice. It’s perhaps only a matter of time that horror stories concerning section 102NA will find their way into the mainstream media.

Conclusion

Section 102NA of the Family Law Act 1975 gives perpetrators and false accusers of family violence alike unmerited advantages, it has significant deleterious effects on case management and Court resources, and rewards bad behaviour by parties, all at enormous public expense.

The federal parliament must consider the following reforms to section 102NA of the Family Law Act 1975:

  1. Repealing it;
  2. Modifying it so that parties would only be entitled to a lawyer asking questions on their behalf to the other party the section 102NA order applies to;
  3. Restricting its scope to only where allegations of family violence have been found by a Court to be true and/or concerns family violence of a sufficiently serious nature;
  4. Prohibiting any appeal by a section 102NA party on grounds arising from or relating to their failure to secure legal representation for a trial;
  5. Making costs orders mandatory when costs are incurred because a section 102NA party fails to get or keep legal representatives; and/or
  6. Requiring section 102NA parties to pay fees into Court that other parties do not.

These measures would ameliorate or abolish many of the negative unintended consequences of section 102NA.

Read full article: sterlinglawqld.com/the-problems-with-section-102na-of-the-family-law-act-1975

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